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PRESIDENTIAL DIRECTIVE ON THE USE OF
POLYGRAPHS AND PREPUBLICATION REVIEW

HEARINGS

BEFORE THE

SUBCOMMITTEE ON ■

CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OE REPRESENTATIVES

NINETY-EIGHTH CONGRESS
FIRST AND SECOND SESSIONS
ON

PRESIDENTIAL DIRECTIVE ON THE USE OF POLYGRAPHS AND
PREPUBLICATION REVIEW

APRIL 21, 28, 1983, AND FEBRUARY 7, 1984

Serial No. 114

ted for the use of the Committee on the Judiciary

ERRATA

These hearings were held jointly
with the Subcommittee on Civi-1
Service, Honorable, Patricia
Schroeder, Chairwoman, of the
Committee on Post Office and Civil
Service .

COMMITTEE ON POST OFFICE AND CIVIL SERVICE

WILLIAM D, FORD, Michigan, Chairman
MORRIS K, UDALL, Arizona
WILLIAM (BILL) CLAY, Missouri
PATRICIA SCHROEDER, Colorado
ROBERT GARCIA, New York
MICKEY LELAND, Texas
DON ALBOSTA, Michigan
GUS YATRON, Pennsylvania
MARY ROSE OAKAR, Ohio
KATIE HALL, Indiana
GERRY SIKORSKI, Minnesota
FRANK McCLOSKEY, Indiana
GARY L. ACKERMAN, New York
RON de LUGO, Virgin Islands
DOUGLAS H. BOSCO, California
MERVYN M. DYMALLY, California

Tom DeYuua, Staff Director
Robeht E. Lockhart, General Counsel
Patricia F. Rissler, Deputy Staff Director and Chief Clerk
Joseph A, Fisher, Minority Staff Director

GENE TAYLOR, Missouri
BENJAMIN A. GILMAN, New York
TOM CORCORAN, Illinois
JAMES A. COURTER, New Jersey
CHARLES PASHAYAN, Jh., California
WILLIAM E. DANNEMEYER, California
DANIEL B. CRANE, Illinois
FRANK R. WOLF, Virginia
CONNIE MACK, Florida

Subcommittee on Civil Service

PATRICIA SCHROEDER, Colorado, Chairwoman
MORRIS K. UDALL, Arizona CHARLES PASHAYAN, Jr., California

KATIE HALL, Indiana FRANK R. WOLF, Virginia

GERRY SIKORSKI, Minnesota

Andrew Fejnbtkin, Subcommittee Staff Director

i oi yi 0.

PRESIDENTIAL directive on the use of
POLYGRAPHS AND PREPUBLICAJION REVIEW

HEARINGS

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OE REPRESENTATIVES

NINETY-EIGHTH CONGRESS

FIRST AND SECOND SESSIONS

PRESIDENTIAL DIRECTIVE ON THE USE OF POLYGRAPHS AND
PREPUBLICATION REVIEW

APRIL 21, 28, 1983, AND FEBRUARY 7, 1984

Serial No. 114

Printed for the use of the Committee on the Judiciary

33-307 O

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1985

COMMITTEE ON THE JUDICIARY

PETER W. RODINO, Jr., New Jersey, Chairman

JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS, Jr., Michigan
JOHN F. SEIBERLING, Ohio
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
SAM B. HALL, Jr., Texas
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Massachusetts
GEO. W. CROCKET! 1 , Jr., Michigan
CHARLES E. SCHUMER, New York
BRUCE A. MORRISON, Connecticut
EDWARD F. FEIGHAN, Ohio
LAWRENCE J. SMITH, Florida
HOWARD L. BERMAN, California

HAMILTON FISH, Jr., New York
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
F. JAMES SENSENBRENNER, Jr.,
Wisconsin

BILL McCOLLUM, Florida
E. CLAY SHAW, Jr., Florida
GEORGE W. GEKAS, Pennsylvania
MICHAEL DeWINE, Ohio

Alan A. Parker, General Counsel
Garner J. Cline, Staff Director
Alan F. Coffey, Associate Counsel

Subcommittee on Civil and Constitutional Rights

DON EDWARDS, California, Chairman
ROBERT W. KASTENMEIER, Wisconsin
JOHN CONYERS, Jr., Michigan

PATRICIA SCHROEDER, Colorado
CHARLES E. SCHUMER, New York

F. JAMES SENSENBRENNER, Jr.,
Wisconsin

GEORGE W. GEKAS, Pennsylvania
MICHAEL DeWINE, Ohio

Catherine A. LeRoy, Counsel
Ivy L. Davis, Assistant Counsel
Helen C. Gonzales, Assistant Counsel
Philip Kiko, Associate Counsel

(II)

CONTENTS

HEARINGS HELD

Page

April 21, 1983 1

April 28, 1983 65

February 7, 1984. 139

OPENING STATEMENTS

Hon. Don. Edwards

2, 65

WITNESSES

Abrams, Floyd, Esq., of the firm of Cahill, Gordon & Reindei, New York, NY .. 4

Prepared statement 8

Anderson, Maynard, Director, Security Plans and Programs, Department of •

Defense 130

Ansley, Norman, Chief, Polygraph Division, Office of Security, U.S. National

Security Agency 56

Blaylock, Kenneth T., president, American Federation of Government Em-
ployees, and chairman, Public Employees Department, AFL-CIO 39

Prepared statement 42

Garfinkel, Director, Information Security Oversight Office, General Services

Administration 79

Prepared statement 79

Hayes, Dennis K, president, American Foreign Service Association 51

Karp, Irwin, counsel to the Authors League of America, Inc 20

Prepared statement 24

Lynch, Mark, on behalf of the American Civil Liberties Union 26

Prepared statement 31

Ramsey, Arch S., Associate Director for Compliance and Investigations, Office

of Personnel Management 79

Prepared statement 79

Willard, Richard K., Deputy Assistant Attorney General, Civil Division, De-
partment of Justice 67

Prepared statement 67

Wilson, Charles, Director of the Office of Public Affairs and Chairman of the

Publications Review Board, Central Intelligence Agency 90

Prepared statement 90

ADDITIONAL MATERIAL

Anderson, Maynard, Director, for Security Plans and Programs, unauthorized

disclosures 132

McGehee, Ralph W. } submissions to the Publications Review Board 107, 116

Schroeder, Hon. Pat, chairwoman, Civil Service Commission 66

Prepared statement 3

Winchester, Robert J., chief, House Liaison Division, letter dated June 7, 1983
to Helen Gonzales, counsel 115

APPENDIXES

Appendix 1 — “The CIA and the Cult of Intelligence/’ by Ralph McGehee 161

Appendix 2 — The Willard Report 166

l-C-i

ft®.

(HI)

PRESIDENTIAL DIRECTIVE ON THE USE OF
POLYGRAPHS AND PREPUBLICATION REVIEW

THURSDAY, APRIL 21, 1983

House of Representatives, Subcommittee on Civil and
Constitutional Rights, Committee on the Judici-
ary; and the Subcommittee on Civil Service, Com-
mittee on Post Office and Civil Service,

Washington , D.C.

The subcommittees met in joint session, pursuant to call, in room
2226, Rayburn House Office Building, commencing at 9:06 a.m.,
Hon. Don Edwards (chairman of the Subcommittee on Civil, and
Constitutional Rights) presiding.

Present: Representatives Edwards, Schroeder, Kastenmeier, Si-
korski, Sensenbrenner, Wolf, and DeWine.

Staff present: For Judiciary, Helen Gonzales, assistant counsel,
majority; Phil Kiko, minority counsel; for Post Office and Civil
Service, Andrew A. Feinstein, subcommittee staff director; and
Steve Hemphill, minority counsel.

Mr. Edwards [presiding]. The subcommittees will come to order.

This morning we convene the first of two hearings regarding the
March 11 Presidential directive on safeguarding national security
information. Both of these hearings are jointly sponsored by the
House Judiciary Subcommittee on Civil and Constitutional Rights
and the House Post Office and Civil Service Subcommittee on Civil
Service, which is chaired by our colleague from Colorado, Mrs.
Schroeder.

The President's directive appears to be yet another administra-
tion step toward curtailing the free flow of information in this
country. In this morning's newspaper I noticed something new. The
administration is considering making all leaks of classified informa-
tion by Government employees a Federal crime punishable by up
to 3 years in prison and $10,000 fine. It occurs to me that President
Nixon pointed out that the menues at the White House were classi-
fied in his time — 1 presume they still are — so you can go to jail for
3 years for telling what you had for breakfast at the White House.

This morning we are going to hear from a number of witnesses
who have expressed concern regarding the general thrust of the
President's directive, as well as the specific provisions regarding
polygraphic examinations and prepublication review agreements.
Then on next Thursday, April 28, we are going to hear testimony
from a number of administration witnesses, including someone
from the Justice Department.

( 1 )

Before I introduce our first witness, I will defer to the cochair of
this mornings meeting, Congresswoman Pat Schroeder, who chairs
the Civil Service Subcommittee.

[The statement of Mr. Edwards follows:]

Opening Statement of Congressman Don Edwards

This morning we convene the first of two hearings regarding the March 11 Presi-
dential Directive on Safeguarding National Security Information. Both of these
hearings are jointly sponsored by the House Judiciary Subcommittee on Civil and
Constitutional Rights and the House Post Office and Civil Service Subcommittee on
Civil Service, which is chaired by Congresswoman Schroeder.

The President's Directive appears to be yet another Administration step toward
curtailing the free flow of information in this country. For example, last year the
President issued a new Executive Order on classification and secrecy which reversed
a 30 year bi-partisan, trend to greater openness. Last month, this Administration
became the first Administration, since the death of Chile's former President Salva-
dore Allende, to prohibit his widow from speaking in this country. This Administra-
tion has made repeated attempts, especially in the Senate, to amend the Freedom of
Information Act to make it mere difficult for the public to have access to informa-
tion on how governmental decisions are made. A few weeks ago, my Subcommittee
held a hearing regarding the proposal by the Office of Management and Budget to
restrict even privately funded political activity by organizations which receive feder-
al grants.

Now we have before us a Directive by the President which will greatly expand the
use of polygraph tests by the fedeial government, as well as increase the number of
current and former employees compelled — for the rest of their lives, apparently — to
submit any writings or speeches to the government for prior approval even if the
subject matter of the speech or writing is not classified.

This morning we will hear from a number of witnesses who have expressed con-
cern regarding the general thrust of the President's Directive, as well as the specific
provisions regarding polygraph examinations and pre-publication review agree-
ments.

Next Thursday, April 28, we will hear testimony from a number of Administra-
tion witnesses, including a representative of the Justice Department.

Before I introduce our first witness, I will defer to the co-chair of this morning's
hearing, Congresswoman Schroeder, who chairs the Civil Service Subcommittee.

Mrs. Schroeder. I thank you very much.

I thank the gentleman from California.

I am delighted we are holding joint hearings on the Presidential
directive on safeguarding national security information, issued on
March 11, 1983.

This order was allegedly issued because, as the Justice Depart-
ment claims, “Unlawful disclosures of classified information
damage national security by providing valuable information to our
adversaries, by hampering the ability of our intelligence agencies
to function effectively, and by impairing the conduct of American
foreign policy.” This sounds reasonable, but since the order re-
stricts the exercise of first amendment rights, it also seems reason-
able that the administration give us an example or two of the
damage. So, I turned to the report on which this order is based and
find the following: “This report has been kept unclassified, and as
a result specific examples of harmful unauthorized disclosures have
not been included.” In other words, the administration wants to
limit the right of the public to information about governmental
policies and not tell them why it is doing so.

As I see it, the order contains five troubling provisions. First, it
tells agencies to require individuals with access to classified infor-
mation to sign a nondisclosure ageement and to require individuals
with access to Sensitive Compartmented Information [SCI] to sign a

nondisclosure' agreement which includes a provision for prepublica-
tion review. After the Snepp case, it's hard to figure out why the
later provision is needed. It’s noteworthy that this provision covers,
I assume, contractors as well as Federal employees.

Second, agency regulations are supposed to “govern contracts be-
tween media representatives and agency personnel.” If this section
works, it will insure that proadministration policy leakers get to
the press while critics and whistleblowers are cut off.

Third, the directive mandates investigations of unauthorized dis-
closures. The investigations can include the use of polygraphs
against any employee, whether or not that employee has access to
classified information, so long as the employee works in an agency
where some employees have access to classified information. The
Government doesn't have very many polygraph examiners, so the
administration of polygraph exams will have to be selective. If we
have learned anything from the first 2 years of this administration,
it is that this selectivity will be used against troublemakers, dis-
senters and the like, with little regard to the likelihood that they
were the sources of leaks.

Fourth, employees can be fired or otherwise disciplined for fail-
ing a polygraph and can be fired or otherwise disciplined for refus-
ing to take a polygraph. This hardly allows for voluntary poly-
graph examinations, as provided in the current Government-wide
regulations and as recommended in professional guidelines for
polygraph examiners.

Fifth, a new study group is established to look at the Federal
personnel security program. This is the operation which, up to a
few years ago, used to disqualify people for jobs based on previous
organizational membership or association. I would hate to think
that this directive could lead to the old guilt by association pro-
gram of the fifties and sixties,

I hope your examination of this directive will convince the ad-
ministration to pull it back and establish some more reasonable
method of safeguarding national security information.

[Prepared statement of Mrs. Schroeder follows:]

Prepared Statement of Representative Pat Schroeder

Chairman Edwards, I am delighted we are holding joint hearings on the Presiden-
tial Directive on Safeguarding National Security Information, issued on March 11,
1983.

This order was allegedly issued because, as the Justice Department claims, “Un-
lawful disclosures of classified information damage national security by providing
valuable information to our adversaries, by hampering the ability of our intelligence
agencies to function effectively, and by impairing the conduct of American foreign
policy,” This sounds reasonable, but since the order restricts the exercise of First
Amendment rights, it also seems reasonable that the Administration give us an ex-'
ample or two of the damage. So, I turned to the report on which this order is based
and found the following: “This report has been kept unclassified, and as a result
specific examples of harmful unauthorized disclosures have not been included,” In
other words, the Administration wants to limit the right of the public to informa-
tion about governmental policies and not tell them why it is doing so.

As I see it, the order contains five troubling provisions. First, it tells agencies to
require individuals with access to classified information to sign a nondisclosure
agreement and to require individuals with access to Sensitive Compartmented Infor-
mation (SCI) to sign a nondisclosure agreement which includes a provision for pre-
publication review. After the Snepp case, it’s hard to figure out why the latter provi-
sion is needed. It’s noteworthy that this provision covers, I assume, contractors as
well as Federal employees.

Second, agency regulations are supposed to “govern contacts between media rep-
resentatives and agency personnel.” If this section works, it will insure that pro-
Administration policy leakers get to the press while critics and whistleblowers are
cut off.

Third, the directive mandates investigations of unauthorized disclosures. The in-
vestigations can include the use of polygraphs against any employee, whether or not
that employee has access to classified information, so long as the employee works in
an agency where some employees have access to classified information. The govern-
ment doesn’t have very many polygraph examiners, so the administration of poly-
graph exams will have to be selective. If we have learned anything from the first
two years of this Administration, it is that this selectivity will be used against trou-
blemakers, dissenters and the like, with little regard to the likelihood that they
were the sources of leaks.

Fourth, employees can be fired or otherwise disciplined for failing a polygraph
and can be fired or otherwise disciplined for refusing to take a polygraph. This
hardly allows for voluntary polygraph examinations, as provided in the current gov-
ernment-wide regulations and as recommended in professional guidelines for poly-
graph examiners.

Fifth, a new study group is established to look at the Federal personnel security
program. This is the operation which up to a few years ago, used to disqualify
people for jobs based on previous organizational membership or association. I would
hate to think that this directive could lead to the old guilt by association program of
the fifties and sixties.

I hope your examination of this directive will convince the Administration to pull
it back and establish some more reasonable method of safeguarding national securi-
ty information.

Mr. Edwards. Thank you.

Does the gentleman from Ohio, Mr. DeWine, have a statement?

Mr. Dewine. No, Mr. Chairman.

Mr. Edwards. Our first witness this morning is Floyd Abrams, a
noted first amendment attorney, currently with the New York firm
of Cahill, Gordon & Reindel. Mr. Abrams represented the New
York Times in the Pentagon papers case,

Mr. Abrams, we welcome you, and you may proceed.

TESTIMONY OF FLOYD ABRAMS, ESQ., OF THE FIRM OF CAHILL,
GORDON & REINDEL, NEW YORK, N.Y.

Mr. Abrams. Chairman Edwards, Chairwoman Schroeder, and
members of the subcommittees. I have provided the committee
with a text of my statement and I would like to ask it be incorpo-
rated.

Mr, Edwards. Without objection, so ordered.

Mr. Abrams. I appreciate that you have a number of witnesses
this morning. As a result, what I would like to do is summarize
what I consider the salient points contained in my statement.

What I tried to do was to summarize three things: First, I tried
to make an effort to put these new regulations in some kind of con-
text, even outside the area of the classification system, the use of
polygraph tests, and the like.

The reason I do that is because it seems to me that it is now pos-
sible to make some valid generalizations about the information
policies of the administration in a wide range of areas. It seems to
me, Mr. Chairman, that those policies are unique in recent history.
They are coherent, they are consistent, and unlike those of some
recent administrations, they are not a bit schizophrenic. They are
also in my view consistently at odds with the notion that wide-
spread dissemination to the public of information from diverse
sources is in the public interest. It is almost as if information were

in the nature of a potentially disabling contagious disease which
must be feared, controlled, and ultimately quarantined.

I cite in my statement a number of examples. I will simply cite
to you now the areas which I cite. One is the efforts of the adminis-
tration significantly to contract the use of the Freedom of Informa-
tion Act, a point of high priority since the time the administration
took office.

Another is the use by the administration of the Export Adminis-
tration Act to permit governmental interference by the Depart-
ment of Commerce to unclassified university research.

A third is the use of the Foreign Agents Registration Act so as to
require films made in Canada — as everybody knows, including the
Academy Award winning documentary "If You Love This
Planet” — to be preceded by a statement saying that they are politi-
cal propaganda.

Another is the use of the McCarran-Walters Act to ban from our
shores a variety of foreign individuals, including the widow of Sal-
vadore Allende, and spokesmen from a variety of groups in north-
ern Ireland.

Another is the use of our customs laws, at least to try to keep
materials sold freely on the streets of Iran from coming into this
country.

Another is a switching position, from the position of the Depart-
ment of Justice in the Carter administration with respect to pend-
ing cases before the U.S. Supreme Court.

Then there is the adoption on the part of the administration of
the Intelligence Identities Protection Act last year, the law de-
scribed by University of Chicago Professor Philip L. Kurland as
“the clearest violation of the first amendment attempted by Con-
gress in this era.”

I don’t suggest for a moment that what I believe to be the con-
sistently antagonistic views of this administration to the wide-
spread dissemination of information is unique in the sense that
none of these acts existed before or that none of them were ever
used before. The McCarran-Walters Act has been on the books for a
long time and has been used. The Intelligence Identities Protection
Act was drafted under the Carter administration.

What is new, it seems to me, is the across-the-board rejection of
the values of information reflected in the totality of acts and posi-
tions taken by this administration. What is also new, I believe, is
the disdain with which the values of information have been viewed,
the ease with which those values have been overcome in the serv-
ice of other interests.

The second thing that I wish to bring to the committee’s atten-
tion is my views as to the background of the specific new Presiden-
tial directive. That has really come in three parts. First, the admin-
istration revoked, in 1981, guidelines put into effect by Attorney
General Civiletti to limit the potentially harsh effects of the case
entitled Snepp v. United States. The Snepp case, as you will recall,
upheld as against first amendment challenge, the enforceability of
a CIA requirement that its current and former employees agree to
prepublication review process similar to that which the Govern-
ment is now seeking to enforce by this new Presidential directive.

The Supreme Court upheld the directive as applied to the CIA
and held Mr. Snepp, who is in this room today, responsible under a
constructive trust theory whereby all the profits he made from the
book he wrote had to go to the Government. And so they have.

Now, as the committee is aware, the Snepp decision was a very
controversial one for a lot of reasons, not the least that it was con-
sidered by many, at least, a risky decision, even if one agreed with
it — as I did not — a risky decision in terms of its potential for appli-
cation to other areas of Government outside the CIA, other individ-
uals who do not hold sensitive positions.

It was a result of that that Attorney General Civiletti issued
guidelines designed to assure that the Attorney General at least
took a very close look before using the Snepp case to impose any
kind of constructive trusts in the future on any other Government
employees, or indeed, even went to court with respect to it.

Those guidelines were revoked on September 3, 1981. The only
reason offered was to avoid any confusion as to whether the United
States will evenhandedly and strenuously pursue any violations of
confidentiality. No example was offered of any harm actually
caused by the Civiletti guidelines. I may say that no example has
ever been offered of any harm which genuinely exists, which has
required the adoption of any of the new administration policies
which I will refer to today, including the March 11 Presidential di-
rective that brings us here today.

The second step taken by the administration was to revise the
classification system itself. Basically what was done was to revise,
by an executive order entered in April 1982, the entire system so
as, in general, to make more material classified, to make it harder
for the public to gain access to some material that it had otherwise
gained access to. Standards became harsher. Repealed, for example,
was a regulation, in effect, which said that at least people that
classified material ought to consider the public's right to know as
they went through the classification process. That was repealed, as
were a number of other requirements.

One of those requirements was the one which had said that if a
classifier wasn't sure whether something should be classified at a
higher or lower level, he should make it at the lower level. That
was explicitly repealed and now he is obliged to make it at the
higher level. So our current situation is that we have deliberately
more material classified than ever before, and now, as of March 11,
1983, having revoked the Civiletti guidelines, having expanded the
category of information which is classified, the Snepp ruling cited
as a basis for a Government-wide adoption of prepublication censor-
ship.

The sweep of this new order is that it at least applies to all
senior officials in the Departments of State and Defense, all mem-
bers of the National Security Council staff, senior White House of-
ficials, and senior military and foreign service officers. All of these
individuals are subject to what the new Presidential directive char-
acterizes as sensitive compartmented information. They will, if I
read it correctly, remain so for the rest of their lives. Indeed, as I
read the directive, although there may be a little leeway here, so
will everyone else who has access to classified information if the
Presidential directive is implemented.

In practice, this means one of two things — it will either be en-
forced or it will not. If it is enforced fairly and equitably across the
full range of individuals subjected to it, it will mean necessarily
that some of the most important speech that occurs in our society
would be subjected first to governmental scrutiny and then, per-
haps, to judicial scrutiny if the Government decides it cannot be
said. If it is not enforced evenhandedly, it will be enforced either
politically or capriciously.

I pass in silence the bureaucratic problem of trying to enforce
this across-the-board. In the last year I understand we have figures
for the amount of documents classified in one year, 1980, and the
recent estimates were that 16 million pieces of information were
classified. Consider with me, however, just the speech involved, as-
suming that the Government can really enforce this. It would
mean specifically — and I have annexed three articles to my state-
ment to illustrate this to the committee — that the op-ed article
published in the New York Times by McGeorge Bundy on April 17,
1983, with respect to the MX missile could not have been published
by Mr. Bundy without prior approval by the administration. Nor
could the pro and con pieces on the MX published by the Times on
April 12, 1983, by James Woolsey, a member of President Reagan's
Commission on Strategic Forces, or Jerome Wiesner, formerly the
science advisor to Presidents Kennedy and Johnson.

I cite MX articles — and it was very easy to find them; I could
have found articles on anything else, for two reasons: One is it
seems to me that it makes the point that the very people most
knowledgeable about subjects of overriding national concern are
those who would be most likely subject to prepublication review
procedure. The other is that it simply will not do to say that the
speech can wait until the Government and perhaps the courts com-
plete their review of it. If, as the Supreme Court has indicated, the
pendency of the case is the precise moment when public interest in
the matters discussed would likely be at its height, that is surely
all the more true of public policy.

Nor need one linger on subjects such as the MX missile. When
President Reagan leaves office, if he writes any articles on current
affairs after his retirement, let alone his memoirs, he will be
obliged under this new directive to first submit it for prepublica-
tion Government clearance.

Now, he may view this as acceptable and tolerable as regards
memoirs if there is a reasonably prompt response. But what of
commentary on fast-moving news events, or of the risk that later
administrations will tilt their bureaucratic windmill against their
predecessors? Can we really accept the scenario, as suggested by
the Los Angeles Times last week, that if a succeeding administra-
tion intends to sign an arms control agreement with the Soviet
Union, that Secretary of State Schultz believes is unwise, that he
must first submit his comments to that administration for their
prior approval?

It seems to me, Mr. Chairman, that the new Presidential direc-
tive strikes at the heart of the public to be informed about their
Government, and it does so without a single example being publicly
cited by the administration as to any harm to national security
brought about by the absence of the new rules.

I think it is fair to ask some questions about that. I urge the
committee, if I may, to put this to administration witnesses who
may follow me at later sessions.

It seems to me the committee may want to ask what genuine
harm to national security the Civiletti guidelines did, and what
general harm to national security the Executive order previously
in effect has done which would require the Government to at least
consider the publics right to know when it classified information.
Of course, most specifically for your inquiry, what genuine risk to
national security led to the enactment of the March 11, 1983, Presi-
dential directive. As to each matter, there has never been any ar-
ticulate public statement by the administration as to what specific
harm has occurred, what actual risks were so great as to require
the adoption of new information-limiting policy.

It is as if the only answer were that any potential threat to na-
tional security, however amorphous or however far-fetched, out-
weighs any benefits to the public of widespread dissemination of in-
formation. One can make a case for this, but it is not a case con-
sistent with our history or our Constitution.

Thank you, Mr. Chairman.

[Prepared statement of Floyd Abrams follows:]

Prepared Statement of Floyd Abrams

Chairman Edwards, Chairwoman Schroeder and members of the subcommittee, I
am honored by your invitation to testify today. Although I do so to offer my views
on the Presidential directive of March 11, 1983 which requires all government em-
ployees with access to classified information of any sort to sign standardized nondis-
closure agreements subject to judicial enforcement as a precondition to their access
and which authorizes polygraph tests of such employees with respect to suspected
leaks, I would like first and perhaps primarily to attempt to put the new directive
in some form of historical context. To do so, I will refer as well to other aspects of
the information policies of this Administration.

It is not difficult to generalize about those policies. They are unique in recent his-
tory. They are coherent, consistent and (unlike those of some recent Administra-
tions) not a bit schizophrenic. They are also consistently at odds with the notion
that widespread dissemination to the public of information from diverse sources is
in the public interest. It is almost as if information were in the nature of a poten-
tially disabling contagious disease which must be feared, controlled and ultimately
quarantined.

Let me tick off for you a few examples in related areas before turning to the new
Presidential directive:

The Administration, from its first days in power, has viewed as a matter of high
priority the enactment of major amendments to the Freedom of Information Act.
Some of the proposals, such as those which affected the CIA, would have resulted in
total exemptions of entities now covered by the Act; others would have significantly
narrowed the scope of the Act or made it more difficult or more expensive to use.
No proposal of this Administration would have made it easier to use the FOIA; no
proposal would have expanded, in any area, the scope of FOIA; no proposal would
have made it less expensive to use FOIA. In the last category, by way of example,
the Administration in early 1983 explicitly reversed the policy of former Attorney
General Civiletti of being “generous” in waiving the payment of fees under FOIA to
public interest organizations in favor of sternly phased legalistic tests barring
waiver of fees unless the government itself decides that, among other things, “the
information released meaningfully contributes to the public development or under-
standing of the subject.”

The Export Administration Act (50 App. U.S.C. § 2401, et seq.) has been interpret-
ed by the Department of Commerce to permit governmental interference into un-
classified university research. American universities have been warned that the
statutory ban on the exporting of American technical data bars an American profes-
sor from reading an academic research paper containing unclassified information at
a scholarly conference attended by non-U.S. nationals.

The Foreign Agents Registration Act (22 U.S.C. §§611, et seq.) has been interpret-
ed to require documentary films made by the National Film Board of Canada (in-
cluding the Academy Award winning documentary “If You Love This Planet”) to be
preceded by a statement saying the films were “political propaganda.” Efforts were
made, as well, by the Department of Justice to learn which groups and individuals
asked to see the films. The action by the Department was taken notwithstanding
that the statute itself excepts from its coverage films “not serving predominantly a
foreign interest.”

The McCarran-Walter Act (8 U.S.C. §§1101, et seq.) has been interpreted to bar a
wide range of individuals from our shores by denying them visas. The widow of Sal-
vadore Allende has been denied a visa as have the Reverend Ian Paisley and Owen
Carron, spokesmen of* radical Protestant and Catholic groups in Northern Ireland.

Efforts of an American writer, William Worthy, to bring into this country books
sold freely on the streets of Teheran which allegedly contained copies of documents
seized from the American embassy v/ere met first by impoundment by the FBI and
Customs officials and then by threats of the Justice Department to file criminal
charges. Only when a lawsuit was filed did the Department agree to return the al-
ready public books and to pay damages to those involved.

The Department of Justice, reversing the refusal of the previous Administration
based on First Amendment grounds to defend in the United States Supreme Court
the ban on editorializing by noncommercial education television and radio stations
which receive funds from the Corporation for Public Broadcasting (47 U.S.C. § 399)
is now seeking reversal of a lower court ruling holding the section unconstitutional,
(FCC v. League of Women Voters, No. 82-912)

The Intelligence Identities Protection Act (50 U.S.C. §§ 421, et seq.), the law de-
scribed by University of Chicago law professor Philip L. Kurland as “the clearest
violation of the First Amendment attempted by Congress in this era,” has been
adopted at the urging of the Administration. Under the new law, it may be possible
to prosecute journalists for identifying individuals involved in some fashion or other
with the CIA who have committed criminal acts under the laws of our country.

While I cite those examples of what I believe to be the consistently antagonistic
views of this Administration to the dissemination of information, I do not mean to
suggest that no prior Administration has done any of the things I have referred to.
The McCarran-Walters Act, by way of example, long predated this Administration;
the Intelligence Identities Protection Act was drafted under the Carter Administra-
tion. What is new is the across-the-board rejection of the values of information re-
flected in the totality of acts and positions taken by this Administration. What is
also new is the disdain with which the values of information have been viewed, the
ease with which those values have been overcome in the service of other interests.

When, for example, protests were voiced against the action of the Justice and
State Departments in keeping hundreds of foreigners from attending a United Na-
tions disarmament session, Kenneth Adelman, then deputy UN delegate, said “we
have absolutely no legal obligation to let Tommy Bulgaria or anyone else from
Soviet-front groups” enter the country. And when Assistant Attorney General Jona-
than C. Rose, on a panel before the American Bar Association last year with respect
to granting a total exemption to the CIA from the Freedom of Information Act was
referred to one example of the working of the Act on a campus — the fact that the
William and Mary College newspaper had obtained documents under FOIA disclos-
ing CIA use of college administrators and local police as informants to monitor stu-
dents and dissident activity — he responded by characterizing the example as “trivi-
al” and the ability of the college newspaper to write its article about the subversion
on its campus as merely “nice” since other articles had previously been written
about campus surveillance. 1 I think it was far more that “nice” and, in any event,
of far more consequence than did Mr. Rose. But in those words — "trivial” and
“nice” — Mr. Rose nicely summed up what appears to be the view of the Administra-
tion with respect to the values of information in our society.

These examples are ones of mood and tone. They help to set the background for
the changes effected by the Administration with respect to classification of informa-
tion. Those changes have occurred in three stages.

The first was the revocation in 1981 by Attorney General Smith of Guidelines re-
lating to the decision of the United States Supreme Court in Snepp v. United States,
444 U.S. 507 (1980) promulgated the year before by his predecessor Attorney Gener-
al Civiletti. The Snepp case, as you will recall, upheld as against First Amendment
challenge, the enforceability of a CIA requirement that its current and former em-

The Business Lawyer, Vol. 38, Feb. 1983, p. 721.

ployees agree to prepublication review by the Agency of their writings so as to
insure that no classified material was released. The Supreme Court concluded that
the failure of someone subject to such an agreement to submit his writings, even of
unclassified materials, breached the agreement, subjecting the offending former
agent to the imposition of a constructive trust upon ail proceeds received by him.
Snepp was a controversial ruling for a number of reasons For one thing, although
the United States had proclaimed itself content with the decision below which had
ruled in its favor but had rejected the imposition of so draconian a punishment as a
constructive trust, the Supreme Court held that the United States was entitled to
the greater penalty. For another, the Court's action was one which raised procedur-
al hackles of many people otherwise unsympathetic with Snepp’s actions. On the
petition for certiorari and the responsive written papers alone, the Court decided
the case for the government without first either having received briefs on the
merits or having heard oral argument. It was a judicial performance which led Jus-
tice John Paul Stevens, in dissent, to observe that “[t]he Court's decision to dispose
of this case summarily ... is just as unprecedented as disposition on the merits."
(Id. at 524) And most important of all, Snepp contained language which suggested
that in hands insensitive to First Amendment rights, the pre-publication review pro-
cedure approved for CIA employees might be applied, as well, to the thousands of
non-CIA employees who also have access on some occasions to classified informa-
tion.

Given the risks inherent in the opinion for easy and potentially dangerous exten-
sion to other less sensitive areas than those involving CIA agents, Attorney General
Civiletti issued Guidelines designed to assure that the Government carefully and
sensitively studied a variety of actions before rushing to Court to obtain injunctions
against publication of unintentional and possibly meaningless disclosures of infor-
mation. They included such factors as whether the information at issue had already
been made widely available to the public, whether it has been properly classifiable
in the first place, and the like. (45 Fed. Reg. 85529).

On September 3, 1981, Attorney General Smith revoked the Civiletti Guidelines.
The only reason offered was that of avoiding "any confusion as to whether the
United States will evenhandledly strenuously pursue any violations of confidential-
ity obligations." (46 Fed. Reg. 45052) No example was offered of any harm actually
caused by the Civiletti Guidelines.

The second step taken by the Administration related to the classification system
itself. Under 1978 Executive Order (E.O. 12065) government officials were required
at least to consider the public’s right to know in classifying information, to use the
lowest level of clearance when in doubt and to classify information only on the basis
of “identifiable" potential damage to national security.

By Executive Order 12356 signed on April 2, 1982, President Reagan reversed
each of the critical components of the procedures adopted four years earlier. Gov-
ernment officials were thereafter not required even to consider the public's right to
know as they classify information. When in doubt, government officials were there-
after required to classify material at the highest, not lowest level of secrecy. The
requirement that potential harm to national security be “identifiable" was aban-
doned. And, as a not unintended side effect, the little used but theoretically mean-
ingful power of the judiciary under the Freedom of Information Act to determine
whether information had been correctly classified was eviscerated. Again, no effort
was made to demonstrate that the classification system previously in effect had
harmed national security.

The third step was the Presidential directive of March 11, 1983. Having revoked
the Civiletti Guidelines which had been adopted to assuage concern about the poten-
tial overbreadth of the Snepp ruling, Snepp itself was cited as authority for a gov-
ernment-wide adoption of pre-publication review agreements. The sweep of the new
order is such that it at least applies to all senior officials in the Departments of
State and Defense, all members of the National Security Council staff, senior White
House officials and senior military and foreign service officers. All of these individ-
uals are privy to what the new Presidential directive calls Sensitive Compartmented
Information. Indeed, from the language and purport of the directive, they would be
subject to prepublication governmental review for the rest of their lives. So, as I
read the directive, would all others who had had access to classified information.

In practice, this would mean one of two things. If enforced fairly and equitably
across the whole full range of individuals subject to it, it would mean that some of
the most important speeches that occurs in our society would be subjected first to
governmental scrutiny and then, if the government in power decided that some-
thing would not be written or said, to judicial review. If not enforced even-handedly,
it will lead to politically motivated or, at best, capricious enforcement.

I will pass in silence the bureaucratic morass any such system would create.
Given the fact that in 1980, the last year for which we have statistics, the govern-
ment placed secrecy classifications on 16 million pieces of information (N.Y. Times,
April 19, 1983, p. B6), it will surely be all-but-impossible to enforce. Consider, howev-
er, the speech affected by the directive. If the directive had been in effect in past
Administrations, it would mean that the Op-Ed article published in the New York
Times on April 17, 1983 written by McGeorge Bundy, formerly Special Assistant for
National Security Affairs to President Kennedy and Johnson, with respect to the
Scowcroft Commission’s recommendations regarding the MX missile could not have
been published without pre-publication scrutiny by the government. Neither could
the pro and con pieces on the MX published by the Times on April 12, 1983 by R.
James Woolsey, a member of President Reagan’s Commission on Strategic Forces, or
Jerome B. Wiesner, formerly science advisor to Presidents Kennedy and Johnson.

I cite articles on the MX 2 — innumerable others on other subjects could have been
cited — for two reasons. One is that these citations correctly suggest that the very
people most knowledgeable about subjects of overriding national concern are those
who would most likely be subject to pre-publication review by the government. The
other is that it simply will not do to say that such speech can “wait” until the gov-
ernment and perhaps the courts complete their review of it. If, as the Supreme
Court has observed, “the pendency of a case” is “the price time when public interest
in the matters discussed would likely be at its height,” 3 that it is surely all the
more true of discussions of public affairs.

Nor need one linger on subjects such as the MX missile. When President Reagan
writes any articles on current affairs after his retirement, let alone his memoirs, he
will be obliged first to submit it for pre-publication governmental clearance. He may
view this as tolerable as regards memoirs if there is a reasonably prompt response.
But what if commentary on fastbreaking news events such as the MX? Or of the
risk that later Administrations will tilt the bureaucratic decision-making processes
against their predecessors? Can we really accept the scenario, as perceptively sug-
gested by the Los Angeles Times (April 6, 1983, p. 4), that if a succeeding Adminis-
tration intends to sign an arms-control agreement with the Soviet Union that Secre-
tary of State Shultz believes is unwise that he must first submit his comments to
that Administration for their prior approval?

The effect of the new Presidential directive is thus to strike at the heart of the
ability of the public to be informed about their government. And yet, here again not
a single example has been publicly cited by the Administration of any harm to na-
tional security brought about by the absence of the new rules.

I referred earlier to the possibility that the new Presidential directive will be en-
forced capriciously. It is, I fear, more than a possibility. Consider what has already
occurred in the area of CIA prepublication review. When, for example, the CIA un-
dertook to review prior to publication the book “The CIA and the Cult of Intelli-
gence” by Victor L. Marchetti and John D. Mark, it initially concluded that 339 sep-
arate portions of the book — words, lines or paragraphs—contained classified infor-
mation. As the trial date drew closer, the CIA withdrew from scores of the deletions
they had previously ordered, until by the morning of the trial (six months after the
submission of the manuscript), 168 rather than 339 deletions were at issue. William
Colby, Director of the CIA, when asked about the decision to cut down the number
of deletions, testified that while all 339 deletions were “technically classified,” the
Agency had decided not “to object to things which really aren’t that important,
even though they are technically classified.” 4

As Mr. Colby’s language suggests, there is enormous leeway available to censors
of what may or may not be classified information. It is difficult to believe that
leeway might not be exercised either politically or capriciously. Or, at the very
least, that the granting of any such authority to any governmental official is so
threatening to the ability of the public to receive information relevant to self-gov-
ernment that it should be granted in the absence of an overwhelming showing of
need.

Yet, that is precisely what has been constantly lacking as the Administration has
taken each of hxe actions I have referred to. What genuine harm to national securi-
ty had the Civiletti Guidelines done? Or the provisions of Executive Order 12065
which had required the government at least to consider the public’s right to know

2 Copies are annexed to this Statement.

3 Bridget v. California , 314 U.S. 252, 268 (1941).

4 Appendix, Volume II, at pp, 1129-30, Knopf v. Colby , 509 F.2d 1362 (4th Cir.), cert, denied '
421 u.S. 908 (1975).

as it classified information? What genuine risk to national security led to the enact-
ment of the Presidential directive of March 11, 1983?

As to each matter, there has never been an articulate public statement by the
Administration as to what specific harm had occurred, what actual risks were so
great as to require the adoption of new information-limiting policy. It is as if the
only answer were that any potential threat to national security, however amor-
phous or far-fetched that supposed threat might be, outweighs any benefits to the
public of widespread dissemination of information. One can make a case for this,
but it is not a case consistent with our history or our Constitution.

I will offer only a few comments on the provisions in the new directive with re-
spect to polygraph tests. I do not as an expert on polygraph tests but simply as one
who, like most attorneys, is well aware of the enormous resistance on the part of
our courts to their use. 5 As phrased by one court:

“In applying the scientific acceptability standard to polygraph tests, all United
States courts of appeals addressing the issue have excluded the results of unstipulat-
ed polygraph tests. These courts reason that the polygraph does not command scien-
tific acceptability and that it is not generally believed to be sufficiently reliable in
ascertaining truth and deception to justify its utilization in the trial process. Conse-
quently, they have held that the results of an unstipulated polygraph examination
are either per se inadmissible or that the trial court did not abuse its discretion in
refusing admission of the test results/’ United States v. Alexander , 526 F.2d 161, 164
(8th Cir. 1975).

The twin premises of this rejection have been the unreliability of these tests in
detecting lies and the fear that inherently ambiguous results would lead juries to
ignore other evidence— that the administrator of the test would end up being the
ultimate judge of guilt or innocence. Both premises gravitate against the massive
introduction of polygraph tests into this sensitive area.

I conclude with a single observation. It was President Kennedy, I believe, who
once observed that the ship of state is the only vessel that leaks from the top. It is
ironic that the March 11, 1983 Presidential directive about which we meet today
was itself announced by a “Reagan administration spokesman” who “briefed report-
ers on the condition that he not be named.” {New York Times , March 12, 1983, p.
11). I cannot help but wonder what risks that individual will run in the future.

Mr. Edwards. Thank you very much, Mr. Abrams.

The cochair, Mrs. Schroeder.

Mrs. Schroeder. Thank you,

Mr. Abrams, we really thank you for leading this off. I think you
have done an excellent job of framing what the problem is.

The first amendment is important. I think your dealing with the
op-ed pieces you see in the press really frames why this prepublica-
tion thing is so serious. If you want to carry on a discussion criticiz-
ing policy, you really need somebody who is considered an expert.
What would happen if you enforce and carry the prepublication
thing out? You would have silenced all experts who may be against
you. Someone who stand up and says, “Well, I was a tourist visit-
ing there and I see it differently” would have no credibility. You
have really effectively silenced the opposition.

Mr. Abrams. One of the things that strikes me, Congresswoman
Schroeder, is that I don't even know what the administration's
answer would be if you were to put to them the question of wheth-
er Mr. Bundy's article would or would not be subject to this order.
I don't understand how it could not be if he had been in an admin-
istration that had adopted this provision, and I would urge on you

5 See, e.g., United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974); United States v. Winter , 663
F.2d 1120 (1st Cir. 1981); United States ex rel Sadowy v. Fay, 284 F.2d 426 (2d Cir. 1960), cert .
denied , 365 U.S. 850 (1961); United States v. Webster, 639 F.‘2d 174 (4th Cir. 1981), cert, denied,
456 U.S. 915 (1982); United States v. Martino, 648 F.2d 367 (5th Cir., 1981), cert, denied , 102 S. Ct.
2006 (1982); United States v. Fifee, 573 F.2d 369 (6th Cir. 1976), cert . denied, 430 U.S. 933 (1977);
United States v. Rumell , 642 F.2d 213 (7th Cir. 1981); United States v. Early. 657 F.2d 195 (8th
Cir. 1981); United States v. Eden, 659 F.2d 1376 (9th Cir. 1981), cert, denied, 455 U.S. 949 (1982);
United States v. Hunter, 672 F.2d 815 (10th Cir. 1982).

that if they tell you for some reason it is not subject to it, that
what they are saying is the order is meaningless.

I assume he had the highest — I speak from freedom since I was
not in the Government; a Government official would not even be
able to tell you what I am saying — I assume he had the highest
level of clearance in the U.S. Government and, that being so, he is
precisely the sort of person that the order is directed at, most clear-
ly and specifically, and I would think intendedly.

Mrs. Schroeder. But you're an attorney. Suppose you represent
him, right, under this order as a hypothetical,

Mr. Abrams. OK.

Mrs. Schroeder. He comes to you and says, “The MX issue is
hot. The New York Times wants me to put this out." As you read
the order, and as his attorney, what would you tell him?

Mr. Abrams. I would like to answer that in two parts, because I
want to keep him as a client. First I would tell him, as a legal
matter, it seems to me the order clearly applies to him, that he is
obliged to submit it for pre-publication clearance.

Then, I suppose, we would have a sort of semipolitical chat,
which is will this administration really enforce it against him.
That was my point about capriciousness. I understand that in real
life they may say “Oh, we really don't mean that, we don't really
mean that." The legal answer is clear — it applies.

If they mean it across the board, if they mean to enforce it across
the board, and if they do enforce it across the board, it will neces-
sarily include an op-ed piece such as Mr. Bundy's. If the answer is
that the political realities are such that they wouldn't really en-
force it against him, then we’re not talking law any more at all.
All we're saying is some people can do it and some people can't.

I can't predict in advance who they will be. I assume they will
likely be under any administration, any administration, not unique
to this one, more likely people who are friendly to the administra-
tion will be able to say more more quickly,

Mrs. Schroeder. Couldn't there be a tremendously long
delay

Mr. Abrams. Oh, yes.

Mrs, Schroeder [continuing]. In the preclearance, so that by the
time the MX article finally comes out, it comes out 4 years after
the debate is over. I see a chance for unacceptable delay. I see a
chance for an attorney, if you shift to the political line of saying, “I
don't think they really mean it, George, go ahead," if he gets
caught in this web and they decide to enforce it against him you
could be liable for malpractice.

Mr. Abrams. That is why I would try to make it very clear what
was legal advice and what was not. But the legal advice, it does
seem to me, is really clear. It seems to me to violate both the spirit
and text of the agreement as I read it, to say for any reason that it
does not apply to a person who had the highest security clearance
in the United States, speaking on a matter which he had classified
information.

Bear in mind that Mr. Snepp's case involved unclassified infor-
mation. The Department of Justice conceded that throughout the
case. Nonetheless, the CIA was able to enforce the requirement of
prepublication clearance even as to unclassified material. That is a

way of saying that if that applied to Mr. Bundy, Mr. Bundy
couldn’t decide for himself and I couldn’t advise him as a lawyer
“Look, it is really not classified, so go right ahead and do it.” The
thrust of it is that it is the Government which must decide first
whether it is classified. If you lose there, you have judicial review.

Now, I won’t go into the problems of judicial review, but I will
simply say that the courts have a tendency in this area — it may or
may not be appropriate — but they have a tendency to defer to the
executive branch’s decisions about what is classified and what is
not based on their own institutional sense that it is the executive
branch which really knows what is classified and what is not.

So it is not even as if you had the most probing sort of judicial
review in these matters. You are really resting almost entirely
with the administration in power to make its decision.

Mrs. Schroeder. So selective enforcement, or the potential of se-
lective enforcement, you see as having a phenomenal potential
impact on the first amendment?

Mr. Abrams. I do, indeed. I do, indeed. In fact, it seems to me —
and this is now a practical guess rather than a legal conclusion —
that the enforcement must be selective because there is too much
classified information.

Mrs. Schroeder. Either that, or they’re going to have to quadru-
ple the number of people reviewing documents.

Mr. Abrams. Right.

Mrs. Schroeder. Thank you very much.

Mr. Edwards. Mr. Sensenbrenner.

Mr. Sensenbrenner. Thank you very much, Mr. Chairman.

Mr. Abrams, in looking over your biography, I see that you have
represented the news media on several occasions during the course
of your distinguished legal career. I would assume, as a matter of
philosophy, that the news media would like to see as much classi-
fied material as possible because classified material is perceived
more newsworthy than nonclassified material. Do I have a correct
assumption on that?

Mr. Abrams. I think it is probably true that the news media is
interested in everything, and I think you are really right, that clas-
sified information probably tends to be more newsworthy.

Mr. Sensenbrenner. Given your complaints about the fact that
this Executive order is so sweeping that it would result in selective
enforcement because the Government simply does not have the
personnel to enforce every alleged breach of classification, let me
ask you a philosophical question, not as a lawyer, but as a citizen.

Do you believe that each Government employee should be able to
decide unilaterally whether or not a piece of classified information
should be made public?

Mr. Abrams. No, I don’t. I don’t think the law either allows or
has ever allowed government employees to decide that. I have not
made either a legal or a policy argument to you today there is a
constitutional right to leak every piece of information that an em-
ployee has.

Mr. Sensenbrenner. Given that statement, do you think the
Government had an effective program for investigating leaks of
classified information under the old guidelines?

Mr. Abrams. I don't have a very firm answer to give you on that.
I would have to answer it in two ways, if I may.

One, it is true that I think, as a reader of newspapers— not as a
lawyer — as a reader of newspapers, and as a citizen, that some seri-
ous amount of classified information seems to have become public.
Two, I think that that is in part true because almost everything is
classified. It seems to me that one priority one might have would
be to reduce the amount of information that is classified 1 , rather
than expanding it, and to find a way through law, not through
leaks, to make more information rather than less information
available to the public,

Mr. Sensenbrenner. Say for the sake of argument that the body
of classified information is substantially restricted from what it is
now. I agree with you, that the executive agencies of Government,
whether it is this administration or previous administrations, have
operated under the maxim of “when in doubt, classify it.” But say
that we had a substantially smaller pool of classified information,
but that something that was very sensitive, that was picked up by
the intelligence community in a foreign country involving the na-
tional security of the United States from an undercover source, we
wouldn't quarrel about any of those conclusions being leaked.

What kind of a guideline or proposal would you suggest to
punish the person who leaked something that everybody agrees
should have been classified and should not be in the public
domain?

Mr. Abrams. It seems to me there are two kinds of things that
can be done, both of which are proper if they are done right. One is
to fire him, and the other is, under some circumstances, to com-
mence criminal prosecution against him. There is some type of in-
formation which by everyone's definition it seems to me is genuine-
ly secret, as opposed to the classification designation of “secret.”

Mr, Sensenbrenner. But as we know in other areas of organized
crime, there are some people who are willing to plead guilty or no
contest to crimes and, one, receive even a substantial fine, and
laugh all the way to the bank with the profits of what their crimi-
nal activity has accrued to them.

Given what you said, and given the fact that I am sure you dis-
agree with the constructive trust that was imposed upon Mr. Snepp
by the Supreme Court of the United States, how do you get around
the case where somebody commits a crime that breaches the securi-
ty of the Government, that hurts the public, writes a book about it,
makes several millions of dollars because of the brouhaha that is
aroused as a result of this person committing what everybody
agrees is a crime, pays a $20,000 fine to the Government, and sticks
the rest of the money in his pocket? How do you get at that kind of
a person?

Mr. Abrams. I think you do it in a few ways. One is, you have to
make a philosophic decision. The law makes it in part, but Con-
gressmen certainly have to make it and we, as citizens, have to
make it, and that is the general philosophic legal decision of the
degree to which we are willing to rely on prior restraints to enforce
regulations, to enforce the viability, even, of the system which you
describe.

My view on that is that prior restraints are not only the most
restrictive but the most harmful and the most threatening

Mr. Sensenbrenner. But sometimes it is the only effective
method.

Mr. Abrams. Well, there are some times when there is no effec-
tive method. The usual way that we turn is to our criminal law.
We usually say, if you really believe that certain types of things
are outside the area of what is constitutionally protected, and you
want to punish it, you look to the criminal law to deal with it. That
gives the defendant all the procedural rights of a defendant in a
case; it makes whoever the prosecutor is really go through a very
serious process of deciding whether he wants to prosecute or the
like.

I don't have any constitutional problem or philosophic problem
with the notion that, under some circumstances, it is appropriate
to prosecute people for leaking information, for the public disclo-
sure of information. We have espionage laws. We can change espio-
nage laws. What we can't do, it seems to me, is either to have a
Government-wide system of prior restraint, or, as I read in the
New York Times is being suggested, a Government- wide s}^stem of
criminal law enforcement with harsh penalties for any leak of any
information, however low the level of classification, at a time when
we have a classification system which is out of control.

If we could do a deal, if you could promise me that we would
limit the amount of documents which are classified to such an
extent that we're really talking about seriously secret documents,
then I would say go after them; have some criminal law which has
some meat to it. But I just can't agree, in our society as it exists
today, that we can start criminalizing the leaks of anything which
is classified, which is to say the leaks of anything.

Mr. Sensenbrenner. I think the score in the classification game
is the executive branch 16 million, the legislative branch zero, at
the present time. So I think you are shooting your cannon at the
wrong branch of Government,

Thank you, Mr. Chairman.

Mr. Edwards. Thank you, Mr. Sensenbrenner.

The gentleman from Wisconsin, Mr. Kastenmeier.

Mr. Kastenmeier. Well, I rather agree with that last comment.
At least I think it was suggested that when the President last
made a presentation using secret photos and the like, that he may
have been violating the laws just as anybody else. Whether he is
entitled to do so may yet be a question.

I am interested, and apparently it is rather fuzzy, as to what
standard should be applied. I gather that in the Marchetti case the
court asserted that the Government has a right and duty to strive
for internal security in the conduct of governmental affairs in
areas which disclosure may be reasonably thought to be inconsist-
ent with the national interest.

Would you comment on this as a general standard to be applied?
Is that a fair statement?

Mr. Abrams. I think it is a fair statement of the law as it cur-
rently exists. It is a congressional determination — at least I believe
it is a congressional rather than an executive determination as to
what that law ought to be. But the courts have basically adhered to

the standard that you have set forth, which comes from the Mar -
chetti case.

One of the problems, Congressman Kastenmeier, is that, by ne-
cessity, the words are so vague that you have read from Marchetti.
It is very hard to know what it is we are talking about. That is one
of the reasons why I so object to the whole process of expanding
rather than contracting the categories of classified documents,
which we have been going through in recent years.

Mr. Kastenmeier. You have suggested that one thing we might
do, both the executive and legislative branches, is to provide a
much more narrow definition of what is, in fact, secret or confiden-
tial, some meaningful definition which would limit the number and
sheer bulk of such material Then we could at least hopefully have
some reliance on the fact that it is needfully applied, rather than
as it is today.

Apart from that, and given the lack of definition or lack of pre-
ciseness in terms of the standards we are dealing with, what other
advice would you give us?

Mr. Abrams. I suppose if I had to try to leave you with some-
thing, I would suggest this: what occurred on March 11 was a
change of policy. I believe it was a major change of policy in the
Government. It has yet to be justified to the slightest degree by the
administration. There is not a word — I mean, when they released it
they said what they were doing, and there was no deception about
what they were doing, but there was no basis for what they were
doing. They made no case.

Now, I appreciate the fact that the tendency on the part of the
advocates of that sort of change is to say what they have said al-
ready, which is "well, that's classified.” You pointed that out earli-
er to us, Congresswoman Schroeder. It seems to me that it really
won't do in a situation of a major change in American public
policy, with immense first amendment implications, and immense
implications in terms of the quality and nature and amount of in-
formation the American public can receive, to say, in effect, "I've
got reasons, but I can't tell you.” That is the beginning of it.

It seems to me, if instead of an Executive order, for example,
they had come to the Congress and said "We want a law; let's
make some sense out of all this; we want to pass a law to deal with
what we perceive as a national problem, and the problem is there
is too much leaking by Government employees, so let’s pass some
kind of statute,” you would naturally, as about your first question,
say "What's the problem? How bad is it? Tell us about it.” They
haven't even begun to do that. So it seems to me that is the first
step of analysis, long before you get any legal analysis or any first
amendment analysis or anything else. If what they're going to say
is — at least as I read the order — that "we're going to lose the bene-
fit of the op-ed pieces by Mr. Bundy and the other people,” I at
least want them to start out by telling you what it is we are going
to gain. I don't think they have begun to do that. It seems to me
that that is the first step.

If they can't meet that burden, again law aside, then — I don't
know how helpful it is to say this, but it seems to me the answer is
the Presidential directive of March 11 should not have been issued,

and to the extent that Congress has any say in it, it should urge
the administration to withdraw it, or it should disapprove it.

Mr. Kastenmeier. Do you think we had any real problem in this
area, quite apart from the Executive order of March 11, prior to
that time?

Mr. Abrams. My sense is this: there is no doubt that there is a
good deal of leakage. I quoted in the last paragraph of my state-
ment that nice line from President Kennedy, where he said the
American ship of state is the only vessel that leaks from the top.
We live in a country where there is leakage and leakage out of the
Government. Most of it tends to be from this or any administration
in power.

There is also contraleakage. I can accept the notion that leakage
can get out of hand. One could wind up in a situation, agruendo,
where you couldn’t run a government because you couldn’t write
anything down. I don’t think we’re there; I don’t think we’re any-
where near there. I don’t know the examples that they have in
mind, if they have examples in mind, of what has happened which
leads them to this. If it is a few things, then I would say you’re
probably not going to stop them anyway. You are going to wind up
stopping a lot of things which you shouldn’t stop, and it isn’t worth
the effort and the social and first amendment price to the country
for enacting these new guidelines.

Mr. Kastenmeier. I would certainly agree. Actually, that wasn’t
what I was referring to in terms of the problem. I don’t frankly
think the leakage is that much of a problem. I don’t think our ad-
versaries gain that much from it. I think we perhaps gain a little
more as a free society, about knowing a few things. The fact is we
know incredibly little apparently, at least officially, about what we
are doing in Nicaragua and other places at this very point in time.
That, to me, is a scandal, that much of our policy is cloaked in
secrecy.

So my question was directed even before this Executive order,
did we have a problem in the sense of either the implementations
of existing law or either with some of these cases, in terms of prior
restraint, that suggest to us about freedom of information in our
society.

Mr. Abrams. I think so, Congressman Kastenmeier. I think for
one thing that, both as an institutional matter in terms of the rela-
tionship of this body to the executive branch, and as a first amend-
ment matter in terms of assuring the most widespread dissemina-
tion of information that we can have, that it should be the Con-
gress and not the President who starts this process of deciding
when, if ever, we should have prepublication clearance. And I in-
clude the CIA in that.

There is nothing inconsistent with that and the Srtepp case. The
basis, after all, of the Snepp case was that legislation already exist-
ing by Congress had given the Director of Central Intelligence the
authority to protect sources and methods, and that inherent in that
was the prepublication review procedure to which Mr. Snepp was
subject. So it starts with Congress, it seems to me, and it seems to
me that what Congress could do well to do would be to look into
the question of whether in any area of Government it is justified at
this time in our national life to have prepublication review by gov-

ernmental agencies. My sense is it does so little good, and docs so
much harm, it risks so much harm, that whatever good it does can
be handled in other ways, that we probably shouldn't have it any-
where in the Government.

Surely my sense is that if the executive branch is going to pro-
ceed in this fashion with a directive in March of this year, that
Congress could serve the public well by attempting to call a halt to
it.

Mr. Kastenmeier. I compliment you on your testimony and
thank you for your comments.

Mr. Abrams. Thank you.

Mr. Edwards. My colleagues have asked about all the questions
that I had in mind, Mr. Abrams.

We just had an avalanche of these runaway directives that close-
ly resemble laws, where from the White House come laws that,
without consultation with the Congress, without hearings, without
anything else, we have the CIA permitted to operate within the
United States, the FBI with new authority to do domestic security
investigations in violation of the old 1980 guidelines, and NCIC
changed without asking Congress — it is just like they have a new
toy over there that they have discovered. It is very distressing. We
intend to do what we can to bring it under control.

On the 28th, when the Justice Department comes up here to tes-
tify, I hope they can make a case. They had better describe what
the problem is because so far they have not, except that we under-
stand there have been some embarrassing leaks of nonclassified in-
formation that are more embarrassing than actually cause any
threat to national security.

Mr. Abrams. I would suggest to you, if I may, Chairman Ed-
wards, that the case they make has got to be an overwhelming case
to justify the enormity of what they have done. This directive is
not a little thing. It sweeps across the Government. And it just
doesn’t do that. It impacts necessarily the quality and nature of in-
formation that every American can receive. Anecdotes can’t serve
to justify that. Even if they can cite something to you — and they
haven’t yet — of some example of some leak that genuinely harmed
national security, it would seem to me they have to do a lot more
than that.

Mr. Edwards. There is also a sense of deja vu about this, because
a few years ago we were sitting in room 2141 trying to discover
what the Nixon administration was doing with their attempts to
stop leaks in manners the Judiciary Committee felt was illegal.

Well, thank you very much for your excellent testimony.

Mr. Abrams. Thank you, sir.

Mr. Edwards. We now have a panel presentation by Mark Lynch
and Irwin Karp. Mr. Lynch is with the American Civil Liberties
Union and has represented a number of former CIA employees who
have gone through the CIA’s prepublication review process. Mr.
Karp is counsel to the Authors League of America, which submit-
ted amicus briefs in the Snepp and other cases dealing with the
CIA’s review process.

We are delighted you are both here. Mr. Lynch, are you first?

Mr. Lynch. I will defer to Mr. Karp.

Mr. Edwards. All right. Without objection, the full statements
will be made a part of the record.

TESTIMONY OF IRWIN KARP, COUNSEL TO THE AUTHORS

LEAGUE OF AMERICA, INC.; AND MARK LYNCH, ON BEHALF OF

THE AMERICAN CIVIL LIBERTIES UNION

Mr. Karp. Mr. Chairman, I have submitted a statement which I
ask be included in the record, and which I will not read.

The Authors League is the national society of professional au-
thors, and as you indicated, is deeply concerned with the issue of
prepublication review and nondisclosure agreements.

We think that the requirement under the Executive order that
agencies and departments adopt the CIA's apparatus for prior re-
straint is even more objectionable than the CIA's system itself be-
cause it is going to, without doubt, impose crippling restraints on
freedom of expression of employees, former employees, authors and
others who will be affected by it, and obviously, as has been point-
ed out already, it will drastically restrict the public's right to have
information and opinion about the conduct of Government affairs
from one of the most valuable sources of information from which it
can be obtained, particularly prior Government employees and offi-
cials.

We have cited in the statement several obvious examples of im-
portant contributions to the public's knowledge of how our Govern-
ment is run, contained in books by a number of highly placed Gov-
ernment officials, Presidents, heads of departments, CIA Directors
and so forth.

Actually, I am more concerned about the Frank Snepps and the
Marchettis and the others who function at a somewhat less illustri-
ous level but have as equally an important contribution to make to
the public's knowledge, because I think that the enforcement of
this order, as was the case with the CIA order, will be selective, not
merely because of the great mass of material that will be affected
by the orders in each of these agencies, and the impossible task of
applying the order and the process if it were done impartially
across-the-board, but I think that by the nature of the process it
will prove to be selective for other reasons.

One of the most important is how- important was the person who
submitted the material. A President's work is not going to be re-
viewed in the same wa}^ that Frank Snepp's were or Marchetti's
were, and the results aren't going to be the same.

Prepublication review, we believe, cannot be justified on the
ground that it is necessary to prevent disclosures of classified infor-
mation. The standard in the Executive order of “reasonably could
be expected to cause damage to the national security" is, of course,
a vague one. But beyond that, let me just tick off a few points brief-
ly*

First of all, spies don't convey information by publishing books.
It takes much too long, it is hard work, and he may even have the
publisher reject the book under the satisfactory manuscript clause
after the spy has gone to all that difficulty in writing it. The tele-
phone, the radio, and the mail are a much better way to communi-
cate, even for agents of the most backward countries.

Second, the Turner testimony, that failure to comply with the
order diminished our credibilities, is a little hard to stomach. Mr.
Lynch really didn’t have a fair opportunity to test that testimony.
And I would submit that we still rely on British intelligence, de-
spite much greater leaks than anything that has occurred here. We
haven’t had CIA officials defecting to Moscow. The British have,
and we still cooperate with them.

Third, criminal statutes are available — and I won’t belabor that
point. Mr. Abrams has gone into it already, as, indeed, have Jus-
tices Stevens and White in their opinions in the New York Times
in the Snepp case.

Another consideration is that any former official seriously intent
at all costs on publishing material without submitting to the pre-
publication review can avoid this whole civil process — and it is a
civil process — simply by going abroad. One CIA agent has done
that and published two or three books in the manner and can’t be
touched by this order or the orders that will be extended to other
agencies.

Also, if the author has independent means and isn’t concerned
with preserving his royalties, which would be a luxury enjoyed
only by the most affluent, they, too, can publish, . because if the
Snepp remedy is applied, the worst that a rich author and former
employee would have to face would be the loss of his royalties. And
despite the example of the millions of dollars, that isn’t a great
risk for most authors. The average income of an American author
is $4,000 a year. It wouldn’t affect op-ed page pieces if that were
the remedy, because— I don’t know whether the Times pays any-
thing, but if they pay anything, it won’t buy you a round trip ticket
to Washington on the shuttle.

What it is going to affect is books by people like Frank Snepp,
who take 2 or 3 years to do that hard job of writing the book, don’t
earn huge fortunes — Snepp’s income averaged out over the time he
took to write the book, which made a valuable contribution to our
knowledge of American policy in Vietnam, came to about $30,000 a
year. There are a lot better ways of getting richer quicker than
publishing information that an author really believes the public
should have.

The disclosure of some classified information we think is much
less damaging than the effects of this system of prior restraints,
spread across the boards of other Government agencies. That is the
whole fundamental premise of the first amendment which struck a
balance, and Jefferson and Madison continually emphasized that
abuses will occur and danger and damages will arise occasionally,
but in balance the benefits of pre-expression far outweigh the occa-
sional abuses and damages they cause.

The vice of prepublication review is the vice of all prior re-
straints on freedom of expression. It permits the Government to
suppress not just classified information, or even really important
classified information; it permits the suppression of information
that is not classified and that the public is entitled to have and
that the author is entitled to communicate.

It does it by the very nature of the process. First of all, you don’t
submit just those piece of material that you think are classified or
might be classified. It is a terrible judgment to have to make with

the huge mass of classified material already in existence. You have
to submit the whole works. The burden of the clearance system,
the sheer grinding oppressiveness of it, provides the censor with le-
verage to bargain for the deletion of material that isn't classified
and shouldn't be prohibited from publication.

Second, the process is time-consuming. The more it drags out, the
harder it is for the author and the publisher and the more ready
they are to make concessions, so they give up and they give in on
particular passages.

The burden and the time factors also inhibit the editorial process
to a great extent. You have to remember that before the author,
the former Government employee, can even show a book to the
publisher and the editor, he has to have had it completely cleared,
so that if deletions are required by the Government agency and the
author goes back and rewrites, he then has to take the book back
to the agency. That can go on and on and on until that process is
finished, then for the first time he can take the book to the pub-
lisher. If the publisher and the editor in the usual course of editori-
al work request other changes, he has to go back to the agency and
say that the book has changed and start all over again.

Next is the cost of resisting this type of censorship. The Govern-
ment has a great advantage. The taxpayers are financing the cost
of clearance and the cost of fighting the author and the publisher
in court. The author and the publisher have to bear their own ex-
penses. Again, that creates great leverage for giving up on particu-
lar points.

Lastly, as Justice Stevens pointed out, the very process of requir-
ing a former Government employee, like any author, to submit to
prior censorship creates self-censorship. There is a natural tenden-
cy to begin to cut back and to begin to censor what you are going
to put in the book before the manuscript is even completed, and to
withhold material that you truly believe should reach the public
and that you think is not subject to classification simply for fear of
causing more trouble for yourself.

As we pointed out in our statement, there are a number of first
and fifth amendment safeguard problems created by the Executive
order as well as by the present CIA apparatus for prior censorship.
First of all, how long should the restraint of prepublication review
apply? Should it be for the life of the author, or should it be for
some brief reasonable time? If common law doctrine applied, this is
a restrictive covenant. No court would enforce a lifetime restrictive
covenant.

One of the reasons pointed out in Marchetti, where Judge
Haynesworth said that Marchetti had first amendment rights, he
had the right to publish unclassified information and he had the
right to function as an author and to earn his living as an author.

What prepublication review does to the former Government em-
ployee author is, first of all, to prevent him from functioning as
other authors function. Second, because the scope of the order is so
great, it could actually cost him the opportunity to earn his liveli-
hood in other areas — for example, as a journalist. If the CIA takes
the position that an ex-employee who goes to work as a correspond-
ent for a television network has to submit every story that has the

slightest relationship to the CIA, he can’t work as a journalist. The
network won’t accept that condition.

If a former employee is offered a teaching opportunity, as are
many Government employees, and is subject to prepublication
review, he may not be able to get the position because most univer-
sities will not accept as a member of the faculty somebody who has
to submit to the CIA, the State Department or anybody else, his
notes, his outlines, and his other teaching materials. Jobs, at least
in one instance, have been lost because of that.

If an employee wants to submit a statement to this committee
expressing his views on the clearance procedure, or a former em-
ployee, does he have to get clearance from the agency? He probably
does right now. He can’t submit it to you unless the agency has
cleared him.

Does the employee have to submit novels, poetry, motion picture
scripts? Some are doing that, at least in the case of fiction and
films.

We think that in addition to clarifying these areas of difficulty —
and I would like to emphasize that I don't think that’s the solution.
I think the solution is not to extend the order to begin with. Once
you start proposing refinements on a system that is basically
wrong, I think you help that system exist. In any event, were the
system to be adopted, it is glaringly lacking in these and other safe-
guards.

For example, a former Government employee should have an
uninhibited right of counsel right from the start in the whole
review procedure and in court. He shouldn’t have to, as I gather is
the case, get some sort of clearance from the agency for the counsel
he selects.

Remedies should be specified. One of the great problems with the
Snepp case was that the remedy had no relationship to the wrong,
if it were wrong, involved in that instance, because Mr. Snepp did
not publish classified information. The Government conceded that.
The royalties he earned were not earned by betraying trade se-
crets, which is where the doctrine was borrowed from by the court.
The only relationship between the damages and the act involved
was that he didn’t submit the manuscript for review, and that had
nothing to do with the profits he earned from the book. The court
really made a jump without any basis, from betraying trade secrets
to simply not submitting a manuscript, that that did not contain
trade secrets, and imposed a remedy borrowed from another area.

I think it is important that, if an order were adopted, it require
that the Government take the initiative, that if on completion of
clearance the Government felt that anything that had been submit-
ted violated the order, it would have the burden of going to court,
not the employee.

I think that the order would have to be refined considerably to
indicate what material had to be submitted. It is ridiculous to ask a
former employee to submit a novel, a script for a motion picture,
that is not documentary dealing with the agency but really is en-
tertainment, or statements to congressional committees or other
Government agencies.

I think that in the whole procedure the employee should have
the right to challenge the classification if there is classified materi-

al. I think it is specious to argue that the courts cannot make that
determination. They have to do it in much more sensitive and com-
plex areas than this, and if other material has to be introduced for
the Government to sustain the burden, which it should have to sus-
tain, that could even be done in camera. There are ways of dealing
with that problem without permitting an employee or former em-
ployee to be prevented from publishing material that should have
been declassified 20 years ago.

I think, lastly, that the order, and whatever legislation Congress
were to enact, should require that the Government pay the attor-
neys' fees and costs of a former employee who successfully sustains
the right to. publish material. I think these are some of the areas in
which a very vague and intensely restrictive regulation would have
to be improved before it even began to approach the minimum re-
quirements of the first amendment.

Thank you.

[The statement of Irwin Karp follows:]

Statement of The Authors League of America, Inc. on Secrecy Agreements
and Prepublication Review

The Authors League of America, the national society of professional authors and
dramatists, is grateful for this opportunity to participate in your Committee's dis-
cussion of the President’s recent Executive Order which will require employees in
various government agencies to sign nondisclosure agreements and to submit for
review, prior to publication, books and articles they have written, during or after
their government service.

The Executive Order will thus require several departments and agencies to adopt
the procedures of the Central Intelligence Agency, whose secrecy agreements and
prepublication review procedures were enforced in the courts against former em-
ployees Victor Marchetti and Frank Snepp . . . authors of books published by
Alfred Knopf and Random House. It appears that the Order envisions use of the
penalties applied in those cases, including injunctive relief and judgments compel-
ling payment to the government of any royalites or other compensation earned by
employee-agents who do not submit manuscripts for prepublication review.

The Authors League, on behalf of its 11,000 members, wishes to express its deep
concern with this policy, and to again state its opposition to nondisclosure agree-
ments and prepublication review, and to the pervasive system of prior restraint on
freedom of expression, which they inevitably impose.

In the amicus curiae briefs it filed in the Snepp and Marchetti cases, the League
contended that the CIA’s secrecy contracts and process of prepublication review im-
posed crippling restraints on freedom of expression for government employees, their
co-authors and for other writers who obtained information in interviews and conver-
sations with those employees. This apparatus of censorship will also restrict the
public’s right to have the information and opinions about the conduct of govern-
ment affairs, indeed about much of current history, which these employees alone
can provide. Two sets of First Amendment interests are thus threatened: those of
employee-authors and other writers, and publishers; and those of the public. The
guarantees of the First Amendment, the Supreme Court reminds us, “are not for
the benefit of the press so much as for the benefit of all of us. A broadly defined
freedom of the press assures the maintenance of our political system and an open
society.” ( Time Inc. v. Hill 385 U.S. 374)

The public is entitled to the fullest information about the operations and policies
of its government’s departments and agencies. One of the most effective sources of
this information, and of informed opinion and criticism, are former government em-
ployees: Presidents who have published their memoirs {e.g. Eisenhower, Nixon,
Ford, and Carter); former Cabinet officials and heads of Departments whose books
have added to our insights about the affairs of government (e.g. Secretaries of State
Vance and Kissinger, National Security Adviser Brzezenski, CIA Directors Dulles
and Colby); and many other highly placed officials who have written books and arti-
cles about defense, foreign affairs, intelligence and other matters-— disclosing enor-
mous amounts of information that had not previously been made known to the
public. It is equally important that the public be able to receive the same kinds of

information, opinion and criticism from equally devoted public officials and employ-
ees in lower echelons of the government. And it is this valuable source of informa-
tion that is most threatened by the process of prepublication review— much more so
than highly-placed and more influential officials and former officials.

The Executive order would apply the prepublication review procedure to employ-
ees who have access to classified information, and it is rationalized with the sugges-
tion that it will simply prevent the disclosure of information which “reasonably
could be expected to cause damage to the national security ,, if disclosed in a book or
article without authorization. But prepublication review imposes far greater re-
straints, at an intolerable cost to freedom of expression and the public's right to
know.

At the outset, it should be emphasized that spies don't convey information to the
enemy by publishing it in books. Writing a book takes time; it's hard work; and the
spy, like many more licit authors, may not even be able to find a publisher willing
to issue his work— secrets and classified information notwithstanding. Too, the proc-
ess of publication is much too slow, compared to the mails, telephone, and other
media of communication available to agents of even the most backward countries.

There are, moreover, less damaging means than prepublication review to deal
with unauthorized publication of classified information. In New York Times v. U.S.,
Justices White and Stewart pointed to Sections 797 and 798 of Title 18, as did Jus-
tices Stevens, Brennan and Marshall in Snepp v. United States. The Administration
argues that there have not been any successful criminal prosecutions under these
sections, one reason for this may be that former government officials do not violate
these and other applicable criminal provisions when they write books. Moreover,
any ex-employee intent on revealing classified information in a book or article can
do so regardless of a prepublication requirement in a secrecy contract by taking
himself and his information abroad, and publisliing in another country.

More important, the vice of prepublication review and secrecy agreements is the
vice of all prior restraints on freedom of expression. It permits the government to
suppress directly — or through the inherent coercive effect of the system — much in-
formation the public is entitled to have. In the Snepp case, the government conceded
that no classified information was disclosed in the book.

The prepublication review requirement is not limited to “classified" information
. . . the entire book, article or other work must be submitted for review, even
though the government employee is certain it does not contain classified informa-
tion, and even though — in fact — it does not. As with all systems of prior restraint,
the requirements for submission creates the apparatus for suppression of material
the censor has no right to restrain:

(i) Prior censorship is burdensome, and the burden provides leverage which en-
ables the censor to force deletions of material the author and publisher are entitled
to publish. By the sheer mass of objections, the censor can compel the author to sur-
render on many passages and items of information. In a March column on the Presi-
dent’s Order, Anthony Lewis refers to the experience of former CIA employee Ralph
W. McGehee in trying to obtain clearance of his book “Deadly Deceits: My 25 Years
in the C.I.A." (N.Y. Times, March 17, 1983; p. A23):

“Officials demanded that Mr. McGehee delete from his manuscript critical passag-
es that he was sure included no classified material. When he showed them that the
facts had already appeared in books general^ supporting the agency — by such
former officials as Allen Dulles and William Colby—they withdrew. Then others
would renew the objection."

This pattern is endemic to prior restraint. Censors seek the leverage. Also, they
don't take chances. If they have the slightest doubt, they censor . . . rather than
take the risk of being criticized later for passing something that might displease
higher authority. The same pressures lead to classifying as “confidential" much ma-
terial which is not, and in failing to declassify material that long since has ceased to
be confidential, and indeed has been published.

(ii) Prior censorship is time-consuming, by the nature of the process . . . and be-
cause delay works in the censor's favor. The longer clearance takes, the more likely
the author and publisher will make concessions, accept unwarranted deletions, to
release the book for publication. McGehee lost two years.

(iii) Resisting prior censorship is too costly for most authors and publishers to
afford. Legal fees and expenses make it difficult to oppose restraints at the prepubli-
cation review level, and almost impossible to carry the fight to the courts. Few pub-
lishers could afford to undertake even a District Court challenge, no less appeal to
the Court of Appeals and Supreme Court. This gives clearance officials even greater
bargaining power; well aware of the publisher's financial burden, they can expect
that, with persistence, they can obtain deletions a Court would not allow. Financial

constraint is no problem for them: the taxpayers are financing the cost of the prior
restraint, and the defense of its censorship in the courts.

(iv) Prepublication review induces the most pernicious form of prior censorship—
self-censorship. Mr, Justice Stevens (with Justices Brennan and Marshall concur-
ring) said, in the Snepp case, “The mere fact that the agency has the authority to
review the text of a critical book in search of critical information before it is pub-
lished is bound to have an inhibiting effect on the author's writing. Moreover, the
right to delay publication until the review is completed is itself a form of prior re-
straint that would not be tolerated in other contexts." (444 U.S. 507)

In Near v. Minnesota , 283 U.S. 697, Chief Justice Hughes — in ruling that the
“main purpose" of the First Amendment was “to prevent all such prior restraints
upon publications as had been practiced by other governments . . — stressed that

for “approximately almost one hundred and fifty years there has been an almost
entire absence of attempts to impose previous restraints upon publications relating
to the malfeasance of public officials. . . ." It is now approximately 200 years, and
the Republic has survived without any requirement that employees of the State, De-
fense, Justice or other departments or agencies sign nondisclosure agreements or
compel themselves to submit to the prior restraint of prepublication review. The
CIA apparatus for such censorship has thus far been an aberration, not the accepted
procedure for other areas of the executive branch. The Authors League submits that
Congress should not allow the practice of prepublication review to be thus expand-
ed.

We also note that the Executive Order offers not even the slightest hope of re-
spect for due process. Will the restraint of prepublication review bind former em-
ployees for the rest of their lives, or only for a brief period after termination? Will
the agencies be required to establish procedural due-process safeguards, or be per-
mitted the free-wheeling power traditionally exercised in prior censorship? Will
agencies be compelled to make their decisions within a reasonable, brief period of
time (e.g. 30 days), or will they be permitted to drag out the prepublication review of
a book for months or years? Will the burden be on the agency to go to court to pre-
vent publication if it claims the book contains classified material, or must the
author and publisher commence a proceeding to challenge the decision? Must the
author and publisher shoulder the heavy financial burden of resisting improper de-
mands for deletions and changes, or will the United States pay their legal fees and
expenses for defending their's and the public's First Amendment right? Will Con-
gress have the power to determine which agencies are subject to the prior censor-
ship procedure? And what specific critieria will determine which agencies and class-
es of employees are affected? Will employee-authors be entitled to establish that
particular items of information were improperly classified as “confidential”, or im-
properly retained that classification after the point when they should have been de-
classified?

We would propose answers to these questions if we believed the prepublication
review procedure should be extended beyond the CIA, The Authors League, howev-
er, does not believe it should be applied to other agencies and departments, and we
urge Congress to take action to prevent this dangerous expansion of a system of
prior censorship which is so inimical to the interests safeguarded by the First
Amendment. The risk that an occasional item of classified information may be pub-
lished is far less damaging than would be the impact of prior censorship on those
First Amendment interests.

Mr. Edwards. Thank you, Mr. Karp. That was really very cre-
ative and helpful testimony.

Mr, Lynch.

Mr. Lynch. Thank you, Mr. Chairman, Madam Chairwoman. I
appreciate the opportunity to be invited here today to testify in
behalf of the American Civil Liberties Union. I concur with virtual-
ly all of what has been said by Mr. Abrams and Mr. Karp.

I have submitted a statement which I would ask be included in
the record, and I will proceed from here to summarize some of the
points in there and try not to repeat ground that has already been
covered.

Mr. Abrams pointed out very well the fact that no showing been
made of a problem that needs to be solved by extending prepublica-

tion review from the CIA to the rest of the national security estab-
lishment. I made that point as well in my testimony.

Since I prepared my testimony I have received from Mr. Richard
Willard, the Deputy Assistant Attorney General who chaired the
interdepartmental group that did the staff work for this order, a
copy of the report of the interdepartmental group on unauthorized
disclosures of classified information. I would request that this be
made a part of the record as well.

Mr. Edwards. Without objection, so ordered.

Mr. Lynch. This report demonstrates even more clearly that
there is no basis that has been developed in fact for the extension
of the prepublication review order. The Willard report is, when
read in its totality, a discussion of leaks by current Government of-
ficials and only in passing mentions problems created by generally
inadvertent disclosures by former officials when they write op-ed
pieces, magazine articles, give speeches or write their memoirs. So,
in fact, there is not even, so far as I can tell, a classified annex to
the staff work that underlies this order that demonstrates there is
any kind of significant, persistent problem or detriment to the na-
tional security which has been caused by permitting former State
Department officials, Defense Department officials, White House
officials, NSC officials, to participate in public debate through their
speeches and periodical writing, and to contribute to history by
writing their memoirs.

Consequently, it seems to me that unless the administration can
make a compelling showing — and it is something that they have to
begin doing now because it appears they haven't done it yet — to
justify this incredible extension of censorship, then Congress really
ought to step in. I would urge this committee and other committees
relevant to step in and legislate in this area and put a stop to the
regime that this order will create.

I would just like to hit a couple of points on how this order . is
going to affect the quantity, the quality, and the timeliness of in-
formation which is available for public debate on matters of cur-
rent issues.

First of all, you have to understand that people will not be penal-
ized for disclosing classified information. They will be penalized if
they fail to submit anything which is based on information they
have learned in the course of their employment without getting
clearance beforehand. That is the clear lesson from the Snepp case.
You can get clobbered not for disclosing classified information but
for failing to get the publication review.

Even if you are not writing for any substantial amount of money,
as in the case of the New York Times or Washington Post op-ed
pieces, or even writing for no money, the Government can proceed
against you for punative damages, so there is a deterrence as well
in situations where the author is writing without any economic
motive. So the deterrent, or the necessity to comply with this
order, is going to be very, very great indeed.

I think it is worthwhile to name some names, just to bring home
who will be covered by this order, and the kinds of effects, it will
have on the way things are done in this Nation in terms of inform-
ing the public. Richard Perl, for example, currently the Assistant
Secretary of Defense for International Security Committees, a long-

time staffer for Senator Henry Jackson, if he returns to Senator
Jackson's staff, he will have to clear, before he gets to Senator
Jackson, any speeches he may write which relate to the matters he
has been concerned with while in the Government.

Had this been in effect during the last administration, former
Vice President Mondale and his circle of foreign policy advisors,
like David Aaron and Tony Lake, Richard Holbrooke, all of these
people would have to clear anything they write before they give it
to each other, and certainly before they issue any position papers
or speeches on behalf of the Mondale campaign. That does not
happen to those people because they weren't under this regime, but
had this been in effect at the time, this would be the case.

Richard Burt, currently Assistant Secretary of State for Europe-
an Affairs, in my judgment will not be able to return to the New
York Times as foreign affairs reporter because this order will re-
quire him to submit for preclearance anything he writes relating to
national security matters.

Leslie Gelb, currently on the staff of the New York Times, and
before that a long-time Government official in several administra-
tions, would not be able to function as a reporter for the Times he
had been under this regime.

A good many people who have served in the Government are
now consultants, investment bankers and lawyers who advise cli-
ents on matters which have some relation to the things they were
responsible for while they were in the Government. Richard
Helms, for example, is in the consulting business. Henry Kissinger
is in the consulting business. David Aaron is an investment banker.
Cyrus Vance is a lawyer. These people would not be able to submit
documents to their clients until they were cleared.

Mr. Karp also mentioned the problem with academics. I think
one of the side effects of this order is that it is likely to be a very
severe deterrent to academics who are contemplating temporary
Government service, because it means a great deal of their writing
will be subject to prepublication review if they go back into teach-
ing. I think while not all academics are unprepared to pay that
price, many are.

The timeliness of contributions to public debate is one of the
things that concerns me the most. If we take the administration at
its word for the moment — which in the end we probably shouldn't
do — that they will only insist on the deletion of genuinely classified
information, the problems of delay that are involved in making
that determination are very, very great, indeed. And let me give
you a recent example of how this could have a serious impact.

On Wednesday evening, March 23, the President gave his “Star
Wars” speech. On Sunday, March 27, on the back page of the Out-
look section of the Washington Post three articles appeared re-
sponding to the President's Star Wars speech. One was by current
Undersecretary of Defense Fred Ikle, one was by former Secretary
of Defense Harold Brown, and the third was by a former Undersec-
retary of Defense in the Carter administration, William Perry.
They all responded to the President's speech. Mr. Ikle, predictably,
was supportive; Mr. Brown and Mr, Perry raised some doubts. It
was a lively exchange of views getting these three articles in juxta-
position.

Now, getting clearance for an article, which is presumably writ-
ten on Thursday or Friday after a speech made on Wednesday
night in time for publication on Sunday, is going to be very, very
difficult. It is true the CIA has in some cases turned articles
around in a very short timeframe, sometimes within a day, but
even assuming that the reviewers are cooperative and can resist
the temptation to use the manipulation of the timing of the review
process, I have great doubts whether the bureaucracy which is
going to have to be put in place to implement this order is going to
be able to respond in a timely fashion to satisfy the needs of outlets
of public opinion. The Washington Post, I think we can safely
assume, would not have been interested in Mr. Brown's or Mr.
Perry's articles 10 days after the President's speech. They wanted
them 4 days after the President's speech. That's the nature of jour-
nalism.

I mentioned the bureaucracy and the process, and I think it
might be useful for me to run through with the committee the way
things work at the CIA, where I have represented a number of
former officials who have had to submit their writings for prepubli-
cation review.

The Agency has set up an office called the Publication Review
Board, which serves as a central clearing point for submission of
articles. Since it began keeping records about 4 years ago, this
Board has processed some 800 manuscripts, totally about 70,000
pages. And while I don't have the figures, I can safely venture that
that involved thousands of man-hours of effort by the CIA.

Now, you have to remember that the people who go into the CIA
are not for the most part as likely to anticipate or desire to partici-
pate in public policy debates after they leave. A good many people
who leave the Agency do so under cover and for that reason alone
can't participate. They are much less political people. They are
much less likely to speak out than people who serve with the De-
fense Department, the State Department, the White House and na-
tional security staff.

So if the CIA has had 800 submissions over 4 years, I think we
can expect that figure to be magnified by a factor of four, five, or
six when you apply this requirement to the rest of the national se-
curity establishment.

Now, the CIA does have a relatively good record in clearing
manuscripts within 30 days. There are some horror story excep-
tions which I will mention in a moment. But it would be unfair and
disingenuous for me to suggest the CIA has not been relatively
good in meeting their time limits.

There are a couple of reasons for that, though, which are not
likely to be duplicated throughout the Government. First of all, the
CIA process is relatively self-contained. Very seldom do they need
to consult with other agencies in order to make their determina-
tions. If you contrast that to the situation that will arise if the Na-
tional Security Council staff were to submit a paper, say, on U.S.
policy toward Latin America in the current period, that document
will be received by the NSC. It will then have to be referred to the
Defense Department, the State Department, within the Defense De-
partment, the National Security Agency, and other components as

33-307 O — 84 2

well, and it will also have to go out to CIA. So you’re going to have
a very, very large problem of interagency consultation.

Bureaucracies being what they are, I think it is fair to anticipate
that the 30-day time limit is going to be very, very hard to meet,
indeed, with this level of consultation required.

Second, the prepublication review is very, very similar to a Free-
dom of Information Act request review. I am sure the members of
this committee are fully aware that most agencies of the Govern-
ment, and particularly the State Department and the CIA, have
found it impossible to meet the time limits which are prescribed by
the Freedom of Information Act. Very few Freedom of Information
Acts get processed within 30 days. So it is going to be very difficult
to process manuscripts, frequently numbering far more many pages
than an average FOIA request, within 30 days.

The CIA has managed to meet the requirement by giving prepub-
lication reviews a much higher priority thun they give to FOIA re-
quests, but again, I doubt that that will hold up when this is ap-
plied across the board.

Another difference between the CIA and, let’s say, the State De-
partment or the White House, is that again, while there are some
very, very unfortunate exceptions, the people of the CIA I think
are, for the most part, concerned about looking for information
that will reveal intelligence sources and methods. As I say, there
are some terrible examples where they have gone beyond that, par-
ticularly with people who are critical of the agency. But by and
large they are looking for sources and methods.

The State Department, on the other hand, is inevitably going to
be concerned with a much more complex set of political consider-
ations as to whether they want the former Secretary of Defense or
Secretary of State in this very administration commenting on Gen-
eral Rouney’s conduct at Geneva, for example. That is going to be a
much more sensitive and complex determination than whether a
particular intelligence source is identified. I think inevitably, when
you get into the more political branches of the national security es-
tablishment, the decisions on prepublication review are going to be
even more political than those that are made at the CIA.

Finally, lest I appear to be too commendatory with respect to the
CIA, I would like to express my very firm conviction that, to the
extent the Agency has performed well with respect to prepublica-
tion review, it is because people in key positions out there at the
moment are acutely sensitive to the breadth of the power that they
have been given to exercise by the Supreme Court decision. Again,
bureaucracies being what they are, I am relatively confident that
over a number of years, as the Agency becomes more accustomed
to the extraordinary power that it has, it will begin to exercise that
power more arbitrarily and capriciously than it has in the first few
years after the Snepp decision.

Finally, I must also point out that people who are critics of the
CIA have a much, much rougher time out there in the prepublica-
tion review process than do friends of the Agency. Annexed to my
testimony is the appendix to Mr. Ralph McGehee’s book “Deadly
Deceits,” in which he recounts a 2-year horrendously frustrating
ordeal in getting his book cleared through the Agency. Mr. McGe-
hee is a person who served with the Agency for 20 years and

became deeply disillusioned with the Agency and his book is bitter-
ly critical. His career, for the most part, revolved around Thailand
and Vietnam, parts of the world where Agency activities have been
publicly disclosed to a far greater extent than other parts of the
world. I think had it not been for that fact, and for Mr. McGehee's
extraordinary persistence, patience, and determination, his book
never would have seen the light of day. I would commend that ap-
pendix to the committee for your consideration.

[The statement of Mark Lynch follows:]

Statement of Mark H. Lynch, American Civil Liberties Union

I appreciate the invitation to appear before these two subcommittees on behalf of
the American Civil Liberties Union, which is a non-profit, non-partisan organization
of over 200,000 individuals throughout the nation, dedicated to defending the Bill of
Rights. As an ACLU staff attorney, I have been involved in a number of court cases
involving prepublication review, including Snepp v. United States, 444 US. 507
(1980), and I have also represented former CIA employees in negotiations with the
Agency's Publications Review Board.

President Reagan's new order on secrecy, issued on March 11, 1983, is a serious
assault on the First Amendment because it creates a censorship system which will
drastically affect the quantity, quality, and timeliness of the information available
to the American public on national security issues. Moreover, this order appears to
have been issued without any evidence that unreviewed op-ed pieces, magazine arti-
cles, speeches, and memoirs by former government officials— which make invaluable
contributions both to current public policy debates and to history— are causing any
national security problems which might justify a system of censorship over those
who are in the best position to inform the public.

The order requires that all Executive Branch employees who have access to classi-
fied information must sign a nondisclosure agreement as a condition of employment.
With respect to all persons who have access to sensitive compartmented information
(SCI), the nondisclosure agreement must include a provision requiring prepublica-
tion review.

There has been some confusion over the number of people who will be covered by
this order and particularly whether employees who have access to classified infor-
mation, but not SCI, will be subject to prepublication review. The order leaves agen-
cies free to include prepublication review provisions in the agreements signed by
persons who do not have access to SCI. Moreover, the courts have stated that a non-
disclosure agreement without an explicit prepublication review requirement or mere
access to classified information — even without any written agreement — creates an
enforceable duty to submit to prepublication review. United States v. Snepp, 444
U.S. at 511 n.6; United States v, Marchetti, 466 F. 2d 1309, 1316 (4th Cir.), cert
denied, 409 U.S. 1063 (1972).

Thus, the Reagan order clearly imposes the burden of prepublication review on
officials with access to SCI material, who number in the thousands and include all
of the policy makers in the national security field. Even if the prepublication review
requirement is limited to officials with access to SCI, it will extend to every senior
official in such agencies as the Departments of State and Defense, as well as to all
members of the National Security Council staff, many senior White House officials,
and all senior military and foreign service officers. The order aiso leaves the scores
of thousands of employees with access to non-SCI classified information in a limbo
where, under prevailing judicial precedents, they dare not publish any information
based on their employment without submitting it for prepublication review, regard-
less of whether their nondisclosure agreements contain an explicit provision for pre-
publication review.

The Reagan secrecy order will make it extremely difficult for any former official
to function as a newspaper columnist, radio or TV commentator, or to participate in
political debate since anything they write will be subject to a time delay while it
was being cleared. The full impact of the order can be glimpsed by listing some of
those now writing and speaking who would be required to clear material based on
any information which they learned through their government employment if this
program had been in affect in the past the speeches and writings of Richard Allen,
Alexander Haig, and Eugene Rostow would be subject to censorship by their succes-
sors; political candidates such as Walter Mondale would have to clear political
speeches and position papers with the White House; the memoirs of Henry Kissin-

ger, Zbigniew Brzezinski, Hamilton Jordan and Jimmy Carter would be subject to
censorship by their successors; columns by Jody Powell, Patricia Darien, Elmo Zum-
wait and others would be subject to review with time delays that would make it
almost impossible for them to function as columnists; testimony by Paul Warnke,
Melvin Laird, or David Jones would have to be cleared making timely presentation
to Congressional Committees difficult; reporters such as Leslie Gelb and Richard
Burt would have to submit many of their articles for clearances; professors such as
Anthony Lake and Roger Hilsman would have to clear lectures which they prepare
in advance; consultants, investment bankers and lawyers such as Cyrus Vance,
Brent Scowcroft, Richard Holbooke and David Aaron could not submit reports to
their clients before they were cleared.

In each of these cases the time delays themselves would be very serious, and in
addition the government would often be able to prevent former officials who it
viewed as hostile from making their case by arguing that the information they
wanted to present was classified. A vivid example of how prepublication review
could effect timely debate on issues of public importance recently appeared in the
Outlook Section of the Washington Post. On the evening of Wednesday, March 23,
1983, the President gave his "Star Wars" speech. On Sunday, March 27, the back
page of the Outlook Section carried three articles discussing the issues raised by the
President’s speech written by current Undersecretary of Defense Fred Ikle, and two
officials who served in the Carter Administration, former Secretary of Defense
Harold Brown and former Undersecretary of Defense, William J . Perry. Mr. Ikle
supported the President; Mr. Brown and Mr. Perry raised doubts about the new de-
fense policies the President had proposed.

Under the regime imposed by the Reagan secrecy agreement order, Brown and
Perry would have had to clear their articles. Getting clearance for articles written
on Thursday or Friday for publication on Sunday will be difficult even if the review-
ers are cooperative. However, the temptation to use the clearance process at least to
delay, even if not suppress, negative commentary will be irresistable. Indeed, the
reviewer in this case quite possibly could have been Mr. Ikle himself. Should a gov-
ernment official involved in a policy debate have the power to delete a telling point
or piece of information from his opponents’ articles? This is obviously a treacherous
path which surely will delay, deter, and suppress the flow of information on nation-
al security issues from those qualified most inform to the public.

Individuals who fail to comply with the prepublication review requirement can be
severely penalized simply for the failure to clear even if the manuscript contains no
classified information. Frank Snepp has had to pay all of the proceeds of his book,
Decent Interval, to the government even though the government never alleged that
he disclosed any classified information. The legal theory for this draconian penalty
is the constructive trust doctrine which can be applied not only to one who breaches
a fiduciary duty but also to any third parties who also benefit from the breach.
Thus, the government could have used this doctrine not only to recover all of Mr.
Snepp’s profits but also all the profits of his publisher. The government has not yet
gone this far in any case, but the opportunity is there as a legal matter, and this
threat can be used to deter publishers from publishing uncleared writings of former
government officials. In a case where an author earns no money for his writings
and a constructive trust would be meaningless, the government can seek to impose
punitive damages. Thus, there are formidable deterrents to publication even by au-
thors who write without any profit motive.

The order does not spell not the precise scope of the obligation that will be im-
posed by the prepublication review requirement, and this important question has
yet to be addressed in implementing directives or model agreements. However, it is
useful to look at the CIA’s current positions on these issues. CIA regulations require
submission of "all writings and scripts or outlines of oral presentations intended for
nonofficial publications, including works of fiction, which make any mention of in-
telligence data or activities, or contain data which may be based upon information
classified pursuant to law or Executive Order.” The regulations further state that
"[t]he responsibility is upon the employee or former employee to learn from the
Agency whether the material intended for publication fits the description set forth
in this paragraph.” The regulations define “publication” as “communicating infor-
mation to one or more persons.”

The injunction which was entered against Frank Snepp and upheld by the Su-
preme Court requires him to submit all material relating to the CIA and intelli-
gence matters generally which he "gained during the course of or a result of his
employment with” the Agency. This limitation was consistent with the statement in
Alfred A. Knopf v. Colby , 509 F.2d 1362, 1371 (4th Cir.), cert denied , , 421 U.S. 992
(1975), that "[t]he agreement, of course, covers only information learned by [employ-

ees] during their employment and in consequence of it. It dees not cover information
gathered by them outside their employment or after its termination.”

The Agency, however, recently has sought to abandon the "course-of-or-as-a-
result-of-employment” limitation and expand obligation to submit to all information
concerning intelligence matters. Indeed, in a recent settlement agreement with Mr.
Wilbur Crane Eveland, the Agency, backed by the Justice Department, refused to
abide by the limitation contained in the Snepp injunction and the Knopf opinion
and insisted that the prepublication review obligation includes all writings mention-
ing the CIA or intelligence activities.

Under the Agency r s current position, the extent of what must be submitted is
staggering broad. For example, if a former employee writes a letter to a newspaper
or to his Congressman endorsing or opposing legislation concerning the CIA, he
must submit that letter because it concerns intelligence activities even though it
doesn't include any information which the employee learned through his employ-
ment. A former employee who becomes a columnist must submit anything about his
former employer's current activities, no matter how remote the writing may be
from the individual’s responsibilities while employed by the government. Whether
the Administration adopts the CIA's former position that the obligation is limited to
information learned th rough t employment or its new position that no such limita-
tion applies is a very important issue which will dramatically effect the amount of
material which will have to be submitted and cleared.

Even under the former approach, the scope of the prepublication review obliga-
tion is enormous. Anything which is written— a book manuscript, a column, the text
of a speech or a TV or radio commentary — must be submitted if the writer is cer-
tain that it does not include any classified information; the government of the day
can remove anything which it believes is classified. The writer then may try to per-
suade a court that the disputed information is not properly classified, but litigation
is extremely difficult, burdensome, expensive, and lengthy.

First, courts are sympathetic to the government's argument that the government
alone is qualified to determine what is classified and that courts should not over-
turn these determinations. Second, the standard for classification under current Ex-
ecutive Order 12356, as under its predecessors, is vague — whether disclosure can
reasonably be expected to cause damage to the national security. Indeed, we are cur-
rently contending in court that even under the system of censorship sanctioned in
Snepp , this standard is constitutionally deficient. McGehee v. Casey, No. 81-2233
(D.C. Cir.). Third, even if meaningful judicial review is available, it is very time con-
suming. In the McGehee case, the plaintiffs filed suit on March 27, 1981> challenging
CIA deletions from an article which The Nation magazine wished to publish. The
author and the magazine lost in the district court and due to delays for which they
were not responsible, the case was not set for oral argument until May 18, 1983,
Throughout these two years important information which a magazine wishes to pub-
lish has remained suppressed.

The bureaucracy and expense required to implement the Reagan order will be im-
mense. Each agency will have to establish a censorship board to review and clear
hundreds of books, articles and speeches each year. The operation of the new system
can be discerned by examining the current system maintained by the CIA to review
the manuscripts of its former officials. The CIA has set up a special office to review
these manuscripts. Agency personnel have devoted thousands of hours to reviewing
more than 800 manuscripts since 1977. This system has benefited from the fact that
the CIA usually does not have to consult with other agencies and that its employees,
many of whom maintain their cover after retirement, are less political and less
likely to want to publish and participate in public policy debates than former offi-
cials of the State Department, the Defense Department, the NSC, and the White
House. If the CIA has had to screen 800 manuscripts over four years, we can antici-
pate that Reagan order will lead to the review of many times that number.

The need for inter-agency consultation will also be more time-consuming than the
CIA’s self-contained review process. For example, a manuscript submitted by an
NSC staffer will in many cases have to be referred to the State Department, the
Defense Department, the National Security Agency, and the CIA. Agencies which
have found it impossible to comply with time limits of the Freedom in Information
Act are not likely to do any better with manuscripts which require classification
reviews that are very similar to processing an FOIA request. Because judicial
review is such a long and cumbersome process the government will, by and large, be
able to impose its view of what is classified.

The CIA experience has also demonstrated that the clearance process can be ex-
cruciatingly difficult when the Agency and the author disagree over whether par-
ticular information is classified. In this regard, I refer the Subcommittees to the ex-

perience of Mr, Ralph McGehee, a former CIA official who has recently published a
memoir of his career with the Agency, Deadly Deceipts. Mr. McGehee is deeply disil-
lusioned with the Agency and his book is bitterly critical. It took Mr. McGehee over
two years to get his book cleared. Most people, I believe, are not as determined and
persistent as Mr. McGehee and would have thrown in the towel rather than endure
the frustrations he did. The Agency in numerous instances deleted information
which it had permitted other friendlier former officials to publish or which had ap-
pered in the Pentagon Papers. Had Mr. McGehee’s career revolved around a part of
the world other than Southeast Asia, where an unusual proportion of the Agency's
activities have been officially acknowledge, I doubt that his book could have been
published at all. In one instance, the reviewers reclassified several chapters which
they had originally cleared. Fortunately, this capricious decision was overturned
through an appeal to then Deputy Director of Central Intelligence, Admiral Bobby
Inman, who apparently realized that reneging on a prior clearance was to dubious a
proposition to defend in court. Mr. McGehee has described his ordeal with the clear-
ance process in an appendix to his book, and I would like to submit that appendix
for the inclusion in the record.

The CIA experience has also demonstrated that the enforcement of the prepubli-
cation review requirement inevitably discriminates between critics and supporters
of the Agency. Although there are a number of friendly former employees who have
failed to comply with the prepublication review requirement, the Agency has sued
or extracted pre-litigation settlements from six former employees for failing to
comply with the prepublication review requirement: Victor Marchetti, Frank Snepp,
John Stockwell, Phillip Agee, William Colby, and Wilbur Crane Eveland. All but
Colby are critics in varying degrees of the Agency. Indeed, United States District
Judge Gerhard Gesell held that Agee’s lawyers made a prima facie showing of dis-
criminatory enforcement and refused to impose any financial penalties unless the
Agency rebutted Agee's evidence. Agee v. CIA , 500 F. Supp. 506 (D.D.C. 1980). The
Agency declined Judge Gesell’s invitation to rebut this prima facie showing, but
shortly thereafter moved against Mr. Colby. The Agency now points to its action
against Mr. Colby as proof that it is even-handed, but a five-to-one ratio of critics to
supporters does not, in our judgement, rebut Judge Gesell's finding.

Needless to say, the ACLU believes that the system of censorship imposed by pre-
publication review requirements is unconstitutional. However, the Supreme Court
in Snepp disagreed, and it is unrealistic to expect an early reversal of that decision.
Thus, the burden is on Congress to stop the extension of the censorship sanctioned
by Snepp.

The policy issue before the Congress is whether there is any evidence that the
unrestrained publication of op-ed pieces, magazine articles, speeches, and memoirs
by former government officials has caused a measure of harm to the national securi-
ty that justifies the imposition of a burdensome system of censorship. So far as we
have been able to determine, the Reagan order was not based on any compilation of
evidence that the national security has been harmed by such publications. The
President may be up to his kiester in leaks — which for the most part come from his
closest lieutenants and other highly placed officials — but he has not complained,
much less demonstrated, that publications by former officials are undermining his
national security policies. On the other hand, these publications make a vital and
unique contribution to public debate on issues of the greatest national importance
and to history. Even if it can be demonstrated that former officials commit occasion-
al indiscretions in their writings — either purposefully or, most likely, inadvertant-
ly — it is still incumbent on the Administration to demonstrate that the harm caused
by such disclosures justifies the creation of a vast, burdensome, and expensive
system of censorsliip which will delay, inhibit, and suppress the flow of useful infor-
mation to the public. The Administration should be required to make this showing
to the Congress, and if it cannot— as we are confident it cannot — Congress should
prohibit the imposition of the prepublication review requirement.

Thank you for this opportunity to testify.

Mr. Edwards. Mr. Lynch, I will interrupt you just for a moment
because Mrs. Schroeder has to leave in a minute and she has some
questions.

Mrs. Schroeder. I think you have both done an excellent job.

Let me ask my question for the record because I know there are
a number of other witnesses and we’re moving against an early
starting time for the session today. Originally there was no session,
so that is squeezing us, also.

My question is: How often is the 30-day rule of the CIA been met
in your experience? I understand your broader problem when you
have other agencies, but how many times can one agency meet it?
Then the next thing is, What is the tendency of the bureacracy if
they can't get to it? Is it just easier to say “No,” than to go through
it? I think you addressed that indirectly by saying the ones who
were critics tend to be turned down more than the ones who are
not critics.

But if you would provide that for the record, with the experience
you have had on the whole thing, I think it would be helpful. I do
want to compliment both of you because I think you gave us some
excellent background for when we deal with the administration
witnesses.

Mr. Edwards. Mr. Lynch, did you want to wind up?

Mr. Lynch. I was finished. That was the end of what I had to
say, Mr. Chairman.

Mr. Edwards. The gentleman from Virginia, Mr. Wolf.

Mr. Wolf. No questions, Mr. Chairman.

Mr. Edwards. I have a couple of questions here.

When this kind of a system is set up, preclearance, so to speak,
wouldn't this put the agency in a bind? Because if they approved a
book or a speech or something, that would mean they approve of it,
so they are not going to be very happy about approving material
that is critical of their own agency because they would approve
something that is critical.

Mr. Lynch. That is a big problem. For example, the agency has
publicly acknowledged that we have a relationship with the intelli-
gence service of Great Britain. If someone wanted to write that the
British Intelligence Service was deficient in various respects, the
agency would be in a very difficult position because they have ac-
knowledged that relationship. I think they would very quickly and
artfully identify certain security problems in order to avoid the em-
barrassment that would inevitably arise from the agency approving
a book which was critical of the British Intelligence Service as an
example. So they are in a bind, and that bind frequently is in-
volved in favor of suppression.

Mr. Karp. I think there is another problem which is comparable
to the difficulty in classification. If you have the responsibility of
making the decision and you make the wrong decision, you're going
to get blamed, so it is much easier to classify. If you have the prob-
lem of clearing, here it becomes even a political problem, and you
clear something that either may turn out to be classified or turn
out to be embarrassing, there may be repercussions. So I think, as
this expands beyond the CIA, which has become a more sophisticat-
ed censor, I gather, I think you're going to see more of that pres-
sure having an effect.

Mr, Edwards. Will the decision as to whether or not material
would be classified be clear cut? Are there rules and regulations
that anybody can understand as to what kind of material should be
classified?

I read somewhere quoting an experienced person in one of the
security agencies that said 90 percent of the material that is classi-
fied shouldn't be classified.

Mr. Lynch. Well, the definition for classification established by
Executive order, and the current Executive order provides that in-
formation is classified if its disclosure reasonably could be expected
to cause damage to the national security. That is so vague a stand-
ard as to be no standard, in my view. In fact, we are involved with
some pending litigation right now challenging the classification
order as an adequate standard for conducting these reviews. So the
agencies have enormous discretion of the standard that currently is
applied.

Mr. Edwards. The Presidential directive seems to clearly limit
the applicability of this prepublication review requirement to cur-
rent and former employees with access to sensitive compartmented
information, SCI. Yet you witnesses and Mr. Abrams seem to have
raised the issue that you feel other classified information would be
subjected to the same kind of preclearance, or polygraph test.

Mr. Lynch. Yes. I read that a little differently, Mr. Chairman,
particularly in light of current judicial precedent. The order says
that everybody with access to classified information is going to
have to sign a nondisclosure agreement. If you have access to sensi-
tive compartmented information, the nondisclosure agreement
must include a provision for prepublication review.

It is my understanding — and I think the administration would
confirm this — that it is up to the agencies, on an agency-by-agency
basis, to decide whether those employees who have access to classi-
fied but not SCI material will also have prepublication review pro-
visions inserted in their nondisclosure agreements. But in any
event, the courts, in the Marchetti case and in the Snepp case,
found that a duty to submit to prepublication review was inherent
in a nondisclosure agreement. Indeed, in both cases they held that,
and in both cases intimated fairly directly that mere access to clas-
sified information, even without any written agreement, would
create a fiduciary duty which included a duty to submit to prepub-
lication review.

So unless the administration foreswears application of prepubli-
cation review to people with non-SCI access to classified informa-
tion, I think we lawyers are going to have to advise them that they
are all acting at their peril if they don't submit to prepublication
review. This is an area, though, which the administration certainly
could limit the scope of the order and make us all a lot more com-
fortable.

Mr. Edwards. So if the menu at the White House were classified,
the chef could never write a book about what went on in the kitch-
en?

Mr, Lynch. At least not without clearance.

Mr. Edwards. Now, did Mr. Brzezinski and Mr. Kissinger submit
their writings to the Government based on the access that they had
to highly sensitive material?

Mr, Lynch. My understanding — and this is not firsthand infor-
mation — is that the first volume of Mr. Kissinger's book was not
cleared but the second volume was, as was Mr. Brzezinski's book.
But they only submitted those sections which they thought might
be sensitive.

The lesson of the Snepp case, of course, is that that is not the
employee's decision to make. Again, if the administration were to

interpret this requirement so that responsible people could make
responsible judgments as to what ought to be reviewed, as it seems
Mr. Kissinger and Mr. Brzezinski did, it wouldn't be so horrendous
and it probably would be great, but not as great as it appears on
the face of the order.

Mr. Edwards. Do you know about that, Mr. Karp?

Mr. Karp. I have heard pretty much the same thing.

I would like to come back to the point I made before. I think the
bearableness of the order, even under those circumstances, is going
to depend on who you are. If you are a former Secretary of State,
life may go one way; if you're Frank Snepp or somebody at that
level, life will go a different way.

Mr. Lynch. Could I comment on that discriminatory aspect, Mr.
Chairman?

The CIA has moved against six people for violation of their pre-
publication reviews. They are Victor Marchetti, Frank Snepp, John
Stockwell, Phillip Agee, Wilbur Crane Eveland, and William Colby.
Five of those people, all except Mr. Colby, are critics of the Agency.
A 5 to 1 ratio of critics to friends is I think a very significant show-
ing of discriminatory enforcement. And there are a good many
friends who have neglected to comply with the agreement.

There is absolutely no doubt that the Agency has enforced the
agreement in a discriminatory fashion. Indeed, Judge Gesell held
that there was a prima facie showing of discriminatory enforce-
ment and the CIA chose not to attempt to rebut that prima facie
showing.

Mr. Edwards. Thank you.

Mr. Wolf.

Mr. Wolf. What was the situation in the Agee case? Did he re-
lease the names of known agents

Mr. Lynch. He did in some of his writings. The book that the
CIA sued on was not one of the naming-name books. It was Mr.
Agee's commentary on intelligence activities.

Mr. Wolf. Do you think they were valid in moving against any
of the six?

Mr. Lynch. Well, you know, if the standard is you commit a vio-
lation by not submitting for prepublication review, it is true that
all of these people had failed to submit to prepublication review.
My point is there were a good many other people who failed to
submit for prepublication review but were not penalized.

Mr. Wolf. You made some good points on the prepublication. I
just wondered what would you do, what would your recommenda-
tions be? Assuming that most fair-minded people would acknowl-
edge that potentially there can be problems in the country on
something like this, what would you recommend?

Mr. Lynch. Like Mr. Abrams, I feel strongly that our system of
free expression and law rests on the principle that you set stand-
ards for kinds of speech that are so dangerous they must be de-
terred, and you set up criminal penalties for the disclosure of that
kind of information. If a sensible law dealing with genuine, serious
secrets could be crafted, with criminal penalties, and set that up as
a deterrent, and then rely on the good judgment and prudence of
former Government officials not to publish that kind of informa-
tion, or to seek guidance when they think they are in a grey area, I

think that would perhaps be a sensible way of proceeding. But that
is an awful lot different from the current review.

Mr. Wolf. Are you suggesting, then, that what there should be is
clear standards that everyone understands and accepts, fair stand-
ards, and then if somebody violates them, you come down and you
prosecute them?

Mr. Lynch. That’s right.

Mr. Wolf. This is a loaded question. Do you think there have
been any violations, from your knowledge — and you have been very
much involved in this — whereby fair standards could have been
abused in any of the cases?

Mr. Lynch. You mean

Mr. Wolf. Where prosecution could have been successful.

Mr. Lynch. Well, if you had a statute that I was satisfied with in
terms of defining real secrets, there would be very, very few indis-
cretions, I think, because I think people in the Government under-
stand that certain kinds of intelligence matters, certain kinds of
nuclear weapons matters, are not the sort of things you put into
your memoirs. So if you had an adequate statute, there perhaps are
some examples that could be shown, but not very many.

On that score, and the challenge that I think all of us have laid
down to the administration — that the administration ought to come
up with a showing — I am sure they are going to be able to come up
with some occasional indiscretions and say there is something in
Jimmy Carter’s book they weren’t happy about, or there was some-
thing in Dean Atchison’s book that they weren’t happy about, or
all of the 200 or 300 memoirs that have been written since World
War II.

But as Mr. Abrams said, it has got to be more than the anecdot-
al, and they have got to show — in my view, they have to show a
persistent serious pattern of undermining our national security
policies. A moment’s heartburn at the State Department or De-
fense Department is not enough to justify its regime.

Mr. Wolf. If I could ask one additional question — and I ask you
this because you are experienced in this area — if there is an identi-
fication of CIA operatives, you would acknowledge that that is
something that should be prosecuted and, therefore, that would
meet the rule?

Mr. Lynch. That, of course, has already been dealt with in the
Identities Protection Act, so

Mr. Wolf. But you would acknowledge that that would be
one

Mr. Lynch. Yes; you know, I think the CIA is satisfied with what
they have got now on that. This order does not deal with that prob-
lem. They got what they wanted on that problem.

Mr. Wolf. Thank you very much.

Mr. Lynch. Thank you.

Mr. Edwards. Does counsel have any questions? All right, thank
you very much.

Mr. Lynch. Thank you, Mr. Chairman.

Mr. Edwards. Our next witness is Kenneth Blaylock. Mr. Blay-
lock is chairman of the Public Employees Department of the AFL-
CIO, and president of the American Federation of Government Em-
ployees.

We welcome you, Mr. Blaylock. Without objection, your entire
statement will be made a part of the record and you may proceed,
and you may introduce your colleague.

TESTIMONY OF KENNETH T. BLAYLOCK, NATIONAL PRESIDENT,

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AND

CHAIRMAN, PUBLIC EMPLOYEES DEPARTMENT, AFL-CIO, AC-
COMPANIED BY STEVE PRUITT, LEGISLATIVE ASSISTANT,

PUBLIC EMPLOYEES DEPARTMENT, AFL-CIO

Mr. Blaylock. Thank you very much, Mr. Chairman.

I have with me Steve Pruitt, who is legislative assistant from the
Public Employees Department, AFL-CIO.

We are pleased to have the opportunity to present the views of
our union and the mainstream of Federal employees in regards to
the recent directive, entitled “Safeguarding National Security In-
formation.” We appreciate your interest and your concern in this
matter, Mr. Chairman.

While we heartily support the need to safeguard properly classi-
fied national security information, it is our belief that this directive
is not designed to protect national security interests. Rather, it is
designed to suppress Federal employee disclosure of governmental
operations, waste, inefficiency, and fraud and those things that
may be politically embarrassing to certain officials in the Govern-
ment.

First, let me say the directive we think is very poorly written,
and I would concentrate primarily today on that portion of it deal-
ing with the use of polygraphs and truth devices.

While the directive begins by citing the fact that only national
security information should be classified, it goes on to state that
each agency shall develop procedures governing disclosure which
“the agency considers to be seriously damaging to its mission.” Ac-
cordingly, under the language of the directive, any agency manager
could consider disclosure of agency corruption, mismanagement,
fraud, inefficiency, waste, and so forth, damaging to the agency's
public image, public confidence, and so forth and, therefore, the
ability of the agency to accomplish its mission would be damaged.

In proper context, most agency missions have nothing to do with
national security. Nevertheless, the directive mixes the two con-
cepts as if they were interchangeable.

In 1978 Congress enacted the Civil Service Reform Act and de-
clared that whistleblowing is legitimate, lawfully protected, and
should be encouraged. The President's directive would have a very
chilling effect on Federal employee whistleblowing and the right of
the Federal taxpayers to know what their Government is doing.

The President's directive for the first time provides that employ-
ees outside of national security agencies shall be subject to poly-
graph tests. While the factsheet issued with the Presidential direc-
tive praises the test as a legitimate investigatory technique already
utilized by intelligence agencies, we all know that such polygraph
tests have been consistently rejected by Federal and State courts as
inadmissible for lack of scientific foundation. In addition, imple-
mentation of such a procedure would cost the taxpayer untold dol-

lars as the Government develops the machinery and personnel to
administer these inadmissible tests.

The directive fails to acknowledge that it establishes a whole
new basis for firing Federal employees, The directive specifically
provides that agencies shall develop rules by which employees may
be fired if they refuse to take a polygraph test, or once having been
hooked up to the machine, wish to assert their fifth amendment
rights. Indeed, not only is this a new basis for firing Federal em-
ployees, it contradicts existing civil service regulations which pro-
hibit nonnational security intelligence agencies from firing Federal
workers for refusing to take polygraph tests.

The White House factsheet issued with the directive states, “al-
though unauthorized disclosure of classified information potentially
violates a number of criminal statutes, there has never been a suc-
cessful prosecution." While we find that extremely hard to believe,
we believe that the assertion is evidence that the intent of the di-
rective is scare, rather than substance. If the factsheet's assertion
regarding the lack of successful prosecution of security violations is
correct, this directive is clearly an attempt to end-run, rather than
address existing legitimate criminal procedures necessitated by the
due process clause of our Constitution.

We object to directives which would, without amending the law,
pose a threat of legal action over the heads of Federal employees in
cases where the Department of Justice did not have any legitimate
basis for criminal action, We believe it is appropriate to ask why
Federal employees should be required to sign quasi contractual doc-
uments which could later be used as a basis for termination if their
actions would not otherwise constitute a violation of existing law
governing disclosure of classified material. If there is a deficiency
in the existing laws, we believe that such statutory deficiency
should be addressed by Congress and not by administrative direc-
tives.

Our concern that the directive is designed to have a chilling
effect on legitimate employee whistleblowing rather than improve
national security is augmented by the fact that the White House
factsheet again states that the FBI will be used to investigate viola-
tions of the directive, even where there is absolutely no intention
or foundation for bringing criminal cases.

At a time when an increasing number of States have passed laws
restricting the use of polygraph tests in connection with employ-
ment because such tests are unreliable, unfair, and an invasion of
privacy, the President has ordered the Director of OPM — who has
already turned OPM into a shambles — to undo present Govern-
ment regulations against polygraph tests. Director Devine has been
told to create regulations which, “as a minimum * * * shall permit
an agency to decide that appropriate adverse consequences will
follow an employee's refusal to cooperate with a polygraph exami-
nation."

Mr. Chairman, we see a very dangerous trend in this, and as a
citizen of this country, I have been embarrassed that the Presi-
dent's State Department, over the objection of our Canadian neigh-
bors, required that Canadian films regarding acid rain and nuclear
war not be shown unless preceded by a declaration that they are
foreign propaganda with which the administration does not agree.

It should be noted that the second of those films, “If You Love This
Planet,” recently won an Oscar for best documentary.

As a citizen, I am embarrassed that the President, who is called
“The Great Communicator,” would attempt again to write changes
in the lav/ without going through the legislative process.

I am also embarrassed that the President of the United States,
sworn to uphold the first, fourth, and sixth amendments, would cal-
lously subject Federal employees to harrassing, humiliating, unreli-
able, and unscientific polygraph tests in order to stop leaks that
really having nothing to do with national security, and which the
White House admits don't really warrant criminal investigation
and prosecution.

In our Bill of Rights, the fourth amendment guarantees “The
right of people to be secure in their persons, houses, paper and ef-
fects against unreasonable searches and seizures.” It would be
ironic if under the fourth amendment we limited an employer's
rights to search workers' desks, purses, and homes, but not their
minds for political affiliations and so forth.

The right to remain silent and protection against self-incrimina-
tion are assured by the fifth amendment to the constitution. Yet lie
detector tests would compel individuals to disclose information
about themselves. Often it is not the physiological test data that
prejudices an employee; rather, it is confused statements made
under the duress of an exam that are misinterpreted as incriminat-
ing.

The sixth amendment secures the right to confront one's accus-
ers, but as former Senator Ervin, an expert on constitutional law,
observed about polygraphs, “it is hard to cross-examine a ma-
chine.” Lie detectors are banned from courtrooms precisely because
judges and juries cannot question the devices and because they are
scientifically unreliable.

If this directive is implemented as proposed, Federal workers
would not even have the dignity of protections routinely guaran-
teed to indicted suspects in the criminal courts.

Eighteen States currently have outright prohibitions on employ-
ers requiring the polygraphic testing of their employees. In the ab-
sence of Federal legislation, a mere Presidential directive cannot
preempt these existing State laws. Furthermore, the directive
would have a disparate impact on Federal employees, depending on
the State in which they worked.

The FBI and the various intelligence agencies have personnel
designated to administer polygraph tests. However, under this di-
rective, given its Government-wide effect, OPM and the employer
agencies would find it necessary to develop staff capabilities or con-
tract out to implement this effort. Currently, in the private sector
less than 1 percent of polygraph testers have had any scientific
training. Fewer still have received any education in the behavioral
sciences. In fact, certain polygraphers have estimated that fully 80
percent of their own colleagues are incompetent.

There are 20 different State laws regarding polygraph operator
standards, all of which have a long history of abuse. State licensing
of polygraphers is not reliable. The standards set by these various
laws are much too low. Even the model statute, which is Illinois,
demands no more than a bachelor's degree in any subject — and

that can be modern art, literature, and so forth. No psychological
or scientific training is required.

Is the Federal Government going to step in and establish nation-
wide polygraph operator standards so that its employees who
would be designated to give the tests would do so in some standard-
ized manner? Or will OPM set up its own mechanism?

In 1974, with the passage of the Privacy Act, Congress created a
Privacy Protection Study Commission. That Commission’s final
report took a very strong stand against the use of truth verification
devices, calling their use an unreasonable invasion of privacy that
should be summarily proscribed. The Commission recommended
that a Federal law be enacted to forbid an employer from using
these devices.

In conclusion, Mr. Chairman, it is clear to me that the President
took this unprecedented step of issuing this directive for petty po-
litical reasons. I take him at his word when he said he had it up to
his “keister” with all the press leaks which were occurring at and
around the time this directive was conceived and issued. History
tells us that every leader has had his problem with leaks. However,
it is also true that every leader has, on occasion, created his own
leaks. Yet, no previous President let his frustration with leaks lead
to such a dangerous proposal which threatens the civil liberties of
Federal employees.

We believe this Nation should be governed by rules of substan-
tive law and not through the administrative utilization of fear,
threats, or chilling directives. If a disclosure is illegal, it should be
prosecuted. If it is not illegal, but merely embarrassing to some
partisan political interest, employees should not be threatened with
a morass of investigatory techniques and contractual civil suits.

I would like to urge this committee to get the administration off
the backs of Government workers. The Presidential directive on
safeguarding national security information places an unfair and
improper abuse on the backs of Federal workers. All we ask is that
we be paid for the work we do, compensated when we retire, and
treated like decent human beings. If Federal employees break the
law, the existing criminal investigatory procedures should be ap-
plied to them like any other American citizens.

Thank you again, Mr. Chairman, very much. There are some at-
tachments to my statement that I would like to have entered for
the record.

[Prepared statement of Kenneth T. Blaylock follows:]

Prepared Statement of Kenneth T. Blaylock, National President, American

Federation of Government Employees and Public Employees Department

(AFL-CIO)

Madam Chairwoman and Mr. Chairman, my name is Kenneth T. Blaylock, I
appear here today in my dual roles, President of the American Federation of Gov-
ernment Employees and as President of the Public Employee Department, AFL-CIO.
I am pleased to have the opportunity to share with you our views, apprehensions
and reservations concerning one of the more troubling proposals being promoted by
the Reagan Administration.

On March 11, 1983, President Reagan issued a directive entitled "Safeguarding
National Security Information", While AFGE heartily supports the need to safe-
guard properly classified national security information, it is our belief that this di-
rective is not designed to protect national security interests. Rather, it is designed to

suppress Federal employee disclosure of governmental corruption, waste, inefficien-
cy, and fraud.

While the directive begins by citing the fact only national security information
should be classified, it goes on to state that each agency shall develop procedures
governing disclosure which "the agency considers to be seriously damaging to its
mission." Accordingly, under the directive, agency managers could consider disclo-
sure of agency corruptions, mismanagement, fraud, inefficiency, waste, etc., damag-
ing to the agency’s public image, public confidence, etc., and, therefore, to the abili-
ty of the agency to accomplish its mission.

In proper context, "agency mission" has nothing to do with national security.
Nevertheless, the directive mixes the two concepts as if they were interchangeable.

In 1978, Congress enacted the Civil Service Reform Act and declared that whistle-
blowing is legitimate, lawfully protected, and should be encouraged. The President’s
directive would have a chilling effect on Federal employee whistle-blowing and the
right of the Federal taxpayers to know what their government is doing.

The President’s directive for the first time provides that employees outside of na-
tional security agencies shall be subject to polygraph tests. While the fact sheet
issued with the Presidential directive praises the test as a legitimate investigatory
technique already utilized by intelligence agencies, we all know that such polygraph
tests have been consistently rejected by Federal and state courts as inadmissible for
lack of scientific foundation. In addition, implementation of such a procedure would
cost the taxpayer untold dollars as Uncle Sam foots the bill for the machinery to
administer these inadmissible tests. See, The Use of Polygraphs and Similar Devices
by Federal Agencies. Hearings Before the Committee on Government Operations,
93rd Congress, June 4 and 5, 1974.

While the White House fact sheet asserts that "existing procedural safeguards for
personnel actions involving Federal employees remain unchanged", the directive
fails to acknowledge that it is establishing a whole new basis for firing Federal em-
ployees. The directive specifically provides that agencies shall develop rules by
which employees may be fired if they refuse to take a polygraph test, or once having
been hooked up to a polygraph machine, wish to assert their Fifth Amendment
right against self-incrimination. Indeed, not only is this a new basis for firing Feder-
al employees, it contradicts existing civil service regulations which prohibit non-na-
tional security intelligence agencies from firing Federal employees for refusing to
take polygraph tests. See, FPM Chapter 736, Appendix C (attached).

The White House fact sheet issued with the directive states, "although unauthor-
ized disclosure of classified information protentially violates a number of criminal
statutes, there has never been a successful prosecution". While AFGE finds this ex-
tremely hard to believe, we believe that the assertion is evidence that the intent of
the directive is scare, rather than substance. If the fact sheet’s assertion regarding
the lack of successful prosecution of security violations is correct, this directive is
clearly an attempt to end-run, rather than address existing legitimate criminal pro-
cedures necessitated by the due process clause of our Constitution,

The directive also references the establishment of non-disclosure agreements as a
basis for potential civil suits against Federal employees. AFGE objects to a directive
which would, without amending the law, pose a threat of legal action over the heads
of Federal employees in cases where the Department of Justice did not have any
legitimate basis for criminal action, even though a violation of the existing law gov-
erning unauthorized disclosure of classified material constitutes a present basis for
criminal action. We believe it is appropriate to ask why Federal employees should
be required to sign quasi-contractual documents which could later be used as basis
for their terminations if their actions would not otherwise constitute a violation of
existing law governing disclosure of classified materials. If there is a deficiency in
the existing laws, we believe that such statutory deficiency should be addressed by
Congress and not by new Administrative directives.

Our concern that the directive is designed to have a chilling effect on legitimate
employee whistle-blowing rather than improve national security is augmented by
the fact that the White House fact sheet states that the FBI will be used to investi-
gate violations of the directive even where there is absolutely no intention or foun-
dation for bringing a criminal case.

The use of FBI in administrative personnel matters such as these, if not illegal, is
certainly overkill which cannot help but have a chilling effect on federal employees
and the rights of our citizens in general.

As noted earlier the White House Fact Sheet issued with the President’s Directive
stated:

"The directive establishes a new approach to investigating unlawful disclosures to
replace the past practice of treating such matters as purely criminal investigations.

Although unauthorized disclosures of classified information potentially violate a
number of criminal statutes, there has never been a successful prosecution. There
are a number of practical barriers to the successful criminal prosecution in most of
these cases.”

Yet the President has never come to this body for legislation. Rather, by a stroke
of the pen he has ordered his Director of Office of Personnel Management to devel-
op new regulations authorizing the Federal government’s use of polygraph tests for
all federal employees who could have access to classified documents or documents
which could be politically embarrassing to the Administration. At a time when an
increasing number of states have passed laws restricting the use of polygraph tests
in connection with employment because such tests are unreliable, unfair, and an in-
vasion of privacy, the President has ordered the Director of OPM (who has already
turned OPM into a shambles) to undo present government regulations against poly-
graph tests. Director Devine has been told to create regulations which, “as a mini-
mum . . . shall permit an agency to decide that appropriate adverse consequences
will follow an employee’s refusal to cooperate with a polygraph examination. . .

As a citizen of this country, I have been embarrassed that the President’s State
Department, over the objection of our Canadian neighbors, required that Canadian
films regarding acid rain and nuclear war not be shown unless preceded by a decla-
ration that they are foreign propaganda with which the Administration does not
agree. (It should be noted that the second of these films “If You Love This Planet”
recently won an Oscar for best documentary.)

As a citizen, I am embarrassed that the President who is called “The Great Com-
municator” would attempt, again and again, to write changes in the law without
going to this legislative branch of government.

As a citizen, I am embarrassed that the President of the United States sworn to
uphold the First, Fourth, and Sixth Amendments would callously subject federal
employees to harassing, humiliating, unreliable, and unscientific polygraph tests in
order to stop leaks that really have nothing to do with national security— and which
the White House admits don’t really warrant criminal investigation and prosecu-
tion.

In our Bill of Rights, the Fourth Amendment guarantees, “The right of people to
be secure in their persons, houses, papers and effects against unreasonable searches
and seizures . . It would be ironic if under the Fourth Amendment we limited an
employer’s rights to search workers’ desks, purses and homes, but not their minds
for political affiliations, etc.

The right to remain silent and protection against self-incrimination are assured
by the Fifth Amendment to the Constitution. Yet lie detector tests would compel
individuals to disclose information about themselves. Often it is not the physiologi-
cal test data that prejudices an employee; rather, it is confused statements, made
under the duress of an exam that are misinterpreted as incriminating.

The Sixth Amendment secures the right to confront one’s accusers, but as former
Senator Ervin, an expert on constitutional law, observed about polygraphs, “it's
hard to cross-examine a machine.” Lie detectors are banned from courtrooms pre-
cisely because judges and juries cannot question the devices and because they are
not scientifically reliable.

If this directive is implemented as proposed, Federal workers would not even have
the dignity and protections routinely granted an indicted suspect in the criminal
courts.

As a citizen I am appalled that a President who asserts that he is in favor of em-
ployee solidarity and human rights abroad proposes to subject his fellow federal em-
ployees to the sort of harassment that has already been condemned in the private
sector.

It is with great satisfaction and hope that I note that even before the President’s
directive was issued, Members of Congress were expressing concern and writing to
the Secretary of Defense and elsewhere objecting to DoD practices involving poly-
graph tests. Attached are copies of letters from Congressman Brooks to Secretary
Caspar Weinberg, and the Honorable Morris J. Udall as Chairman of the Technolo-
gy Assessment Board,

In his letter to Secretary Weinberg, Congressman Brooks stated,

“The Defense Department’s proposed plan to expand greatly its use of polygraph
is of great concern to me.”

Polygraph evidence is generally reviewed with skepticism because of its question-
able reliability. The Committee on Government Operations raised this concern in
reports issued in 1964 and 1976 and recommended that the device not be used at
least until such time as objective studies demonstrate its reliability. DoD has not

proven the validity and reliability of the polygraph prior to development of the pro-
posed new guide lines, which broaden its use even further.

The proposed use could well affect the concept of individual privacy; indeed, sever-
al states prohibit even private corporations from using the polygraph as an em-
ployement screening device. Of great concern is the fact that the proposed guide-
lines would allow for adverse actions to be taken against employees that refuse a
polygraph examination. ...”

Our saftisfaction that Congress recognizes the abuses inherent in the govern-
ment's use of polygraph testing for employees is shaken only by our concern and
amazement that the President would issue his directive in the face of such Congres-
sional concern, and do so in a manner which flagrantly attempts to by-pass this
body's legislative authority.

STATE LAWS AND THE ADMINISTRATION OF POLYGRAPH TESTS

Eighteen states currently have outright prohibitions on employers requiring poly-
graph testing of their employees. In the absence of Federal legislation a mere Presi-
dential Directive cannot preempt these existing state laws. Furthermore, the direc-
tive would have a disparate impact on Federal employees, depending on the state in
which they worked.

The FBI and the various Intelligence agencies have personnel designated to ad-
minister polygraph tests. However, under this directive, given its government- wide
effect, OPM and the employer agencies would find it necessary to develop staff capa-
bilities or contract out to implement this effort. Currently, in the private sector less
than one percent of polygraph testers have had any scientific training; fewer still
have received any education in the behavorial sciences. In fact, certain polygraphers
have estimated that fully 80 percent of their own colleagues are incompetent.

There are 20 different state laws regarding polygraph operators' standards, all of
which have a long history of abuse. State licensing of polygraphers is not reliable.
The standards set by these various laws are much too low. Even the model statute
(Illinois) demands no more than a bachelor's degree in any subject: Any diploma, be
it in Modern Art, Literature or even Egyptology, satisfied that criteria. No psycho-
logical or scientific training is required.

Is the Federal Government going to step in and establish nationwide polygraph
operator standards so that its employees who would be designated to give the tests
would do so in some standardized manner? Or will OPM set up its own truth squads
who would burst into an employee's office like storm troopers and administer poly-
graph tests?

In 1974, with the passage of the Privacy Act, Congress created a Privacy Protec-
tion Study Commission. The Commission's final report in 1977, took a very strong
stand against the use of ‘Truth verification” devices, calling their use an “unreason-
able invasion of privacy that should be summarily proscribed.” The Commission rec-
ommended that a Federal law be enacted to forbid an employer from using these
devices to gather information from an applicant or employee. The Commission also
asked the Congress to implement this recommendation by a statute that bans the
manufacture and sale of truth verification devices.

Congress has, over the years, demonstrated that there are limits to the harassing
conditions that employers can impose on employees. Assaults on constitutional
rights, on fundamental human dignity, should not be tolerated at any time. They
spread too easily.

Former Supreme Court Justice Louis Brandeis, said “(the) most comprehensive of
rights and the right most valued by civilized men” is the simple right to be left
alone. Lie detector tests deny workers the right to be left alone.

CONCLUSION

It is clear to me, that the President took this unprecedented step of issuing this
directive for petty political reasons. I take him at his word when he said he had it
up to his “keister” with all the “press leaks” which were occurring at and around
the time this directive was conceived and issued. History tells us that every leader
has had his problems with leaks. (However, it is also true that every leader has on
occasion created his own leaks.) Yet, no previous President let his frustration with
leaks lead to such a dangerous proposal which threatens the civil liberties of Feder-
al employees.

AFGE believes that this nation should be governed by rules of substantive law
and not through the administrative utilization of fear, threat, or chilling directives.
If a disclosure is illegal, it should be prosecuted. If it is not illegal, but merely em-
barrassing to some partisan political interests, employees should not be threatened

with a morass of investigatory techniques and contractual civil suits as part of a
broad program to undo the whistle-blowing protections of the Civil Service Reform
Act.

I would like to urge this Committee to get the Administration off the backs of
government workers: The Presidential Directive on “Safeguarding National Security
Information” places an unfair and improper burden on the backs of Federal work-
ers. All we ask is that we be paid for the work we do, compensated when we retire
and treated like decent human beings. If Federal employees break the law, the ex-
isting k criminal investigatory procedures should be applied to them just like other
American citizens.

Mr. Edwards. Mr. Blaylock, thank you for your testimony. With-
out objection, they will be made a part of the record.

Does Mr. Pruitt have a statement?

Mr. Pruitt. No, sir.

Mr. Edwards. How many Federal employees are there who
would have access to classified information?

Mr. Blaylock. I don't have that answer, Mr, Chairman, It would
be a very small percentage of the 2.5 million Federal workers.

Mr. Edwards. They do not now have to sign nondisclosure agree-
ments?

Mr. Blaylock. No, sir.

Mr. Edwards. Except, I guess, if they work for the CIA.

Mr. Blaylock. Right.

Mr. Edwards. Contractors that deal with the Government, indus-
trial contractors, manufacturers of strategic weapons and so forth,
they certainly have access to classified information. Would they be
covered by the polygraph requirement here?

Mr. Blaylock. We’re not sure the way this is written now. One
of the problems with the directive, Mr. Chairman, is that it is so
loosely written it can be interpreted a lot of ways. They could, theo-
retically, the way it is written, apply it to contractors, but there is
no mention for the requirement of it.

You know, we ran into a situation not too long ago on the west
coast, where we found a security function contracted out. We
happen to represent the INS people, also. We found eight illegal
aliens working for the contractor in a function of guarding a secu-
rity area for the Department of Defense. Normally, very little crite-
ria is applied to the contractors.

Mr. Edwards. This is a very radical proposal. It is something, if
you think about it, that is very shocking. Has anybody described to
you the crisis or the series of crises and the leaking of information
that would require this directive be issued?

Mr. Blaylock. I would support some of the testimony given by
previous witnesses. We know of no serious crisis or of no large
problem that is going on anywhex*e that has been brought to our
attention, you know, as far as leaks that involve national security.
You’re as familiar as we are with the internal leaks that go on in
this town. I know for the 10 years I have been here I think we have
only had two or three incidents where it was considered a national
security situation, and even that was challenged in the court and I
think only one of those wound up in prosecution.

I don’t know where the problem is, other than the politically em-
barrassing leaks that seem to drift out of any administration. That
is what we think this is designed to do. The way this directive is
written, we would not have had an Ernie Fitzgerald with a $3 bil-
lion override on the C5-A, and I could go down that line. We think

Federal workers have a right to let the American public know, and
we think the American public has a right to know what is going on
in their Government. If there are legitimate security issues that
need to be protected, we support protecting those.

Mr. Edwards. What you are saying, then, you think that this di-
rective conflicts with the whistleblower protection statute?

Mr. Blaylock. We think it was written with that exactly in
mind, Mr. Chairman.

You know, it has already been abused to a degree. The business
we’re in, we represent Federal workers, and that includes repre-
senting them in adverse actions, removals or whatever, classifica-
tions and so on. It is not uncommon, Mr. Chairman, for a shop
steward, in in a nonsecurity agency, in representing the rank-and-
file Federal worker, to not be able to get access to that worker’s
personnel file or other information because they classify it.- It will
be classified confidential or sensitive. We have even had very frivo-
lous information classified as top secret and it wasn’t made avail-
able. We wound up through the courts getting the material and it
deals with how the guy goes home, you know, and he’s not even in
a security agency to start with. So it is abused at this point
anyway, and we see this as just shoring it up.

Mr. Edwards. Thank you.

The gentleman from Minnesota, Mr. Sikorski.

Mr. Sikorski. Thank you, Mr. Chairman.

Mr. Blaylock, you briefly touched on the incident in California.
Could you describe that more fully, about the illegal aliens being
employed by

Mr. Blaylock. Yes, sir. You know, one of the areas that there
has been an increase in contracting out in the last few years has
been in security— building guards, area guards, and so on. In that
particular case, which was about 3 years ago, a contractor got the
security for the Defense activity out there.

Mr. Sikorski. Do you know where specifically that was and what
kind of

Mr. Blaylock. Yes, sir, I can provide the committee all the de-
tails because we got pretty deeply involved in it. Of course, they
removed the aliens and what have you, but the contract still goes
on today at about four times the cost and four times the personnel
that the Government had when we handled it in-house with mili-
tary and civilian personnel. But we would be glad to provide the
committee with the specifics on the case.

Mr. Sikorski. I would appreciate it.

Mr. Edwards. Without objection, it will be made a part of the
record upon receipt.

Mr. Sikorski. Second, are you suggesting that Dr. Devine can’t
be relied upon to issue fair regulations concerning the use of poly-
graphs for Federal employees?

Mr. Blaylock. Yes, sir.

Mr. Sikorski. Would you elucidate your feelings a little better?

Mr. Blaylock. First, the machines themselves are unreliable,
and that has been proven many times.

Mr. Sikorski. Do you have specific instances that can support
that? I think you made reference to one or two in your testimony.

Do you have others you would like to supply us with more detailed
information on?

Mr. Blaylock. Yes, sir, we will be glad to.

We have done a great bit of research in the area, obviously, our-
selves. It is not a new issue. It has been around — Congress has
dealt with it, to my knowledge, since 1974, off and on.

Mr. Sikorski. My State has a particular statute that prohibits
the use of polygraph, or even the recommendation of a polygraph
to prosecute an employee. I am wondering if you have looked at
those statutes that my State and other States have to see their ap-
plication to this type of instance, with this type of directive?

Mr. Blaylock. Yes, sir, I would be glad to. Of course, we devel-
oped our testimony from an awful lot of data that we had for re-
search and our own experiences. I would be more than glad to pro-
vide you those files.

As an example, of the 20 States that have language prohibiting
the use of them, they don't all prohibit it carte blanche. There are
exclusions in there. Again, in some cases they have their security
people or employees involved in security work, so it is all over the
park. Some of them just fiat won’t allow the use, and others allow
them conditionally. Some of them let it be encouraged to be used
and so on.

For example, the State of Maryland has a prohibition against the
use of the machines. Yet employers in the private sector in Mary-
land require their potential employees to come here to D.C. and
take a test. You know, there are all kinds of ways to get around it
out there. I really think it is time the Congress dealt with the issue
of the polygraph machine. That is one of our strong recommenda-
tions to the committee.

After the Commission reported in 1977, there was really no
strong action by the Congress to deal with it in a uniform way.
That’s really the problem. The whole issue of standards for poly-
graph operators, in most cases the standards are almost nil.

Mr. Sikorski. I am wondering, Mr. Chairman, if Mr. Blaylock
would comment on your conclusion that you just don’t trust Dr.
Devine to come up with fair standards with regard to their use.

Mr. Blaylock. Let me first address that by saying I have dealt
with Dr. Devine since he was on the transition team. In my capac-
ity as president of my union, we deal with OPM on all personnel
action matters. I and other representatives of the unions sit on the
pay council. We have watched the appointments of Dr. Devine.

Over the years we have had our problems with the Civil Service
Commission or the Office of Personnel Management, but we always
had a lot of respect for the people over there who were implement-
ing and operating the career merit personnel system, whether it
was people who headed up the classification department or benefit
department or retirement, pay and so on. But most of the people
who have been appointed by Dr. Devine — and you can check the
background yourself — they have no background, no professional
qualifications in the career field for which they have been appoint-
ed.

Mr. Sikorski. Did any of them receive polygraph tests prior to
their

Mr. Blaylock. I don’t know whether any of them have any ex-
pertise in that area, or whether they took it. I doubt that they took
it.

To answer your question, Dr. Devine has made the statement two
or three times that the professional qualifications is not the prereq-
uisite for appointment to political office. It is the person’s loyalty
to the President’s political philosophies and their ability to carry
those ideological philosophies out. That, in itself, is enough for me
to say that Dr. Devine does not care about the career merit system
and in his other actions has definitely attempted to destroy the
system set up by the Pendleton Act over 100 years ago. So we could
take up a lot of your time talking about and justifying my feelings
about Dr. Devine. I think we have other members of the committee
who have had experiences in that area, too.

Mr. Sikorski. Thank you, Mr. Chairman.

Mr. Edwards. Mr. Kiko.

Mr. Kiko. I have one question.

On page 6 of your testimony in the last paragraph relating to
polygraphs, you state:

It would be ironic if under the Fourth Amendment we limited an employer's
rights to search workers' desks, purses and homes, but not their minds for political
affiliations.

Is there anything in any current polygraph examination that re-
quires one to list what their political affiliation is, or what is the
source of this particular comment on political affiliations?

Mr. Blaylock. That's the problem, there are no guidelines. And
when you review the experiences in the private sector of the poly-
graph test, they get into such things as sexual positions — you
know, you name it, they have gone up and down the line, political
affiliations, religion, sexual preferences

Mr. Kiko. How about in the Government?

Mr. Blaylock. Political affiliation would be, especially taking
into consideration Dr. Devine's position on qualifications for ap-
pointment, I assume political affiliation is very important to them.

Mr. Kiko. But that is different than having access to security in-
formation, political affiliation. I mean, that is

Mr. Blaylock. That's what we are saying. There is nothing in
the guidelines right now that sets any standards for the type of
questions that would go on with this test. That's one of our prob-
lems.

Taking into consideration the politicalization that is going on in
the career system, it seems to me that that would be one of their
very heavy concerns. I don't think they have appointed any Demo-
crats in OPM at this point in time, for example.

Mr, Kiko. I just wondered if previous administrations, Democrat-
ic or Republican, have used political considerations to fill jobs.

Mr. Blaylock. You see, the thing that bothers us, there are a
certain number of positions in Government, established by Con-
gress, that are set aside for political appointment, and that is to
make sure that any President does have people at the top level
who believe in his program and work with him. But then the
career system is set up below that. This comes down into the career
system, so I don't think it is an unreal world to be fearful that po-

litical affiliation could be one of the issues that is brought forward
in this kind of testing, especially without clear-cut guidelines pro-
hibiting that.

Mr. Kiko. I have no further questions.

Mr. Edwards. Miss Gonzales.

Ms. Gonzales. Thank you, Mr. Chairman. I have two questions.
First let me follow up on your discussion that you just completed.

It is correct, isn't it, that the problem you are referring to is that
under this directive every single Federal agency will have to draft
its own guidelines and its own regulations to implement both the
prepublication review requirements and the polygraph require-
ments, and that is where your concern is aimed?

Mr. Blaylock. Yes.

Ms. Gonzales. You're saying that right now we don't know what
every Federal agency will do because every single agency will have
to draft its own regulations?

Mr. Blaylock. It requires that each agency do that now. That is
one of our concerns. One, the expertise, and two, the rationale
behind it, and then how it would be used. That's our problem.

Ms. Gonzales. My other question is, evidently what the Govern-
ment is saying right now is that the use of polygraphs will be for
those employees with access to classified information. However, if
you read the language of the directive itself, it says that every
agency that has employees with access to classified information
may draft regulations so that employees in that agency can have
polygraph tests.

Is that the same thing? Are they still saying in this particular
language only those employees with classified information access?

Mr. Blaylock. You're right. The directive begins by citing the
fact that only national security information shall be classified, the
way it addresses that. But then the language of it goes into each
agency shall establish, and that is written throughout. It says each
agency — and that could be the Veterans Administration, it could be
EPA — of course, EPA may have some access to some classified in-
formation, I'm not sure. The Department of Energy probably would
have access to some as you get into the Nuclear Regulatory
Agency.

But this sets it up for every agency. It is written too vague and
too loose and it can be interpreted in any way. The experiences we
have had, not only with this administration but with previous ad-
ministrations, is Federal workers' concerns elevate about the fact
that in many cases they are not able to do a proper job because of
agency policy and program implementation. They have been able
to come to the Congress and go to the press and say, "Look, this is
the reason we can't do our job. Money is being spent, there are
nine supervisors and five workers" and so on. We see this being ap-
plied in that manner and we think it is dangerous.

Ms. Gonzales. Thank you.

Thank you, Mr. Chairman.

Mr. Edwards. Unless there are further questions, I believe this
is an appropriate time to recess for a vote in the Chamber of the
House of Representatives.

Thank you very much, Mr. Blaylock, Mr. Pruitt, for your very
helpful testimony.

Mr. Blaylock. Thank you so much, Mr. Chairman.

Mr. Edwards. We will recess for 5 minutes.

[Whereupon, the subcommittees were in recess.]

Mrs. Schroeder [presiding]. Our next witness this morning is
Mr. Dennis Hayes, president of the American Foreign Service Asso-
ciation. We are awfully glad to have you with us this morning, so
you can tell us why you represent all those “leakers.”

We appreciate your being here and look forward to your testimo-
ny. If you would like to put it in the record and summarize it that
would be fine.

Mr. Hayes. Yes, I would like to submit my statement for the
record later on.

TESTIMONY OF DENNIS K. HAYES, PRESIDENT, AMERICAN
FOREIGN SERVICE ASSOCIATION

Mr. Hayes. Madam Chairwoman, Mr. Chairman, members of the
committee, first off, one of the disadvantages of going fifth, all of
my good lines have already been used up, so I will try to briefly
state our objections.

Actually, in its most brief form, our objections can be summed up
in three words — it won't work. We feel that the directive as it has
been published and as it has been explained will not add anything
to the process of protecting national security, but it will have a
severe cost on the public debate of issues before the country.

First off, I would like to say that as members of the Foreign
Service, we recognize there is a legitimate need to keep some classi-
fied material classified. There is no question but that some infor-
mation, if released, if published, could damage the U.S. national in-
terests and may, in fact, jeopardize the fortunes, the prestige, or
even the lives, of America's allies overseas.

Having said that, though, we are somewhat perplexed as to why,
with all the effort that has gone into this subject, the committee
that was formed and the work that was done, why it has chosen to
focus on the areas that they have. We feel this committee seems to
have started out with a very narrow predisposition, and that is, to
find out how to stop certain leaks. They have not looked at the
bigger problem, the bigger question, which is what are we doing
about all this classified material out there and how can we effec-
tively control it.

The questions that we would like to have seen come out of this
committee are an explanation of what problems have arisen in the
past, why is it that the existing legislation is not sufficient to con-
trol this, what affect these new proposals are going to have on the
free flow of information, and also, if polygraphs and predisclosure
statements are the way to go, why is it that each agency has been
given such wide leeway in determining exactly what will be cov-
ered?

To go back to my initial point, which is we feel these new direc-
tives will not work, I would like to expand on that a little bit.

The first question that comes to mind is how much is classified
and who classifies it. The answer there basically is that almost ev-
erybody in certain agencies has the authority to classify. In most
offices, any material that is produced is automatically given a cer-

tain classification. I think there are good reasons for this; people
are working, the world is constantly changing, there is new infor-
mation coming in all the time, and if each officer were to sit down
and carefully examine each piece of paper that is produced to de-
termine what the appropriate classification is, they would add 6 to
10 hours on to every day and the Government foreign policy insti-
tutions would come to a complete standstill. So I don't feel the
question of how things are classified can be easily answered and
there is no simple answer in saying that a certain percent should
be dropped or not.

The next one is who sees the classified material. Again, the
answer is “just about everybody." Any major document that comes
out of the State Department, or I assume any other agency, is usu-
ally signed off on by at least 20 or 25 people. Each of those 20 or 25
principals has his or her own office where there is an untold
number of additional people who see this. You start with the offi-
cer who drafts it, the secretary who types it, the communicator
who transmits it, the people at the posts who read it, the distribu-
tion throughout the building. I feel that in most cases the type of
information we are talking about is going to be seen by 100, 200
people at a minimum.

Therefore, when a leak comes up, following along, the next ques-
tion is which leaks warrant being investigated. Several of the
people who have been up here today have commented that they
feel there is no way to do this fairly and nonpolitically, and we
tend to agree. Obviously, the decision of what leaks will be investi-
gated will be determined by the embarrassment or the pain that
someone has caused by it and, therefore, motivated to bring in this
cumbersome operation.

Further, the next question along the line is who gets investigat-
ed. It is very easy to say we will focus on a particular office, but as
I mentioned earlier, there is a lot of people who see these things.
Where does the line stop? It is one thing to say I may be investigat-
ed or asked to take a polygraph; does it fallow, then, that the As-
sistant Secretary, who is my boss, will also be asked? How about
the Under Secretary, or how about the Secretary himself? We feel
there is a line that comes along here at a certain level that the
likelihood of someone being asked to submit to a polygraph will
occur, and that that line will be fairly low down along the way.

Last, how many times will someone have to take a polygraph? It
is one thing if there's a leak on Monday and everyone gets poly-
graphed on Tuesday and passes, presumably. There is another leak
on Wednesday so we polygraph everybody again on Thursday, and
so on down the line ad infinitum. I think somewhere along the line
people may get tired of getting strapped up to the machine.

Another point I would like to make, in addition to lending my
support to just about everything I have heard from the witnesses
today, is the area of media contacts. In the State Department we
are often accused of being out of touch with the American public. I
don't believe this is so. I think, after spending the last three week-
ends apartment hunting, I can assure you I am not out of contact
with the American people. But the fact remains, we get a lot of our
information that we work on from the newspapers, from the night-
ly news. For instance, I don't work specifically on Central America.

It happens that one of my carpool members does, so I am daily
briefed on Central America. But were my carpool to change, I
would not have access to that information and in the normal
course of my work I would not receive information on Central
America because that is not what I do. Where I get this from is the
daily newspapers.

I feel that to be an effective representative of the United States,
it is important that the Foreign Service be fully briefed. There is
no mechanism inside the Department to keep our people fully
briefed on the events of the world and we benefit from having a
free flow of exchange with the media.

In summation, I would like to go back to our basic point and ask
a few key question. Will these directives be applied uniformly? I
think the answer is clearly “No.” Do we know exactly what these
directives will entail? Again, the answer is “No.” And will they be
effective and will they accomplish what they are set out to do? The
answer is clearly “No.”

Thank you very much.

Mrs. Schroeder. Thank you very much, Mr. Hayes, for your
marvelous and terse statement. I think you have covered a lot of
ground.

Congressman Edwards, do you have any questions?

Mr. Edwards. Thank you, Madam Chairman.

Do you have the resources over there to do this prepublication
review and within 30 days or so?

Mr. Hayes. No, sir, I don't believe we do. I think the magnitude
of the task would be overwhelming. Again, it would become a
matter of putting priorities on to items, and then the question of
who determines what the priority is.

Mr. Edwards. I was talking to a Foreign Service person the
other night and he or she said that there would practically be a
revolt in the Foreign Service if they were strapped in and put
under polygraph testing.

Mr. Hayes. I would hope so, I would expect so. I think it would
seriously impede our ability to serve as effective representatives of
the United States.

Mr. Edwards. I understand that.

Do you know of cases where the Foreign Service has been ac-
cused of damaging the national security of the United States by un-
authorized disclosure of secrete information?

Mr. Hayes. I think we get accused daily. I think, as far as actual
damage to the United States that has come out of information
gotten out of the State Department, I don't believe that has really
happened.

Mr. Edwards. Thank you very much. I certainly appreciate your
testimony.

Mrs. Schroeder. Do any of the counsels have questions?

Mr. Kiko. Do you feel that equivalent security standards should
apply to employees who have access to highly classified informa-
tion regardless of whether they work for intelligence agencies or
elsewhere?

Mr. Hayes. I think that classified material needs to remain clas-
sified if there is a threat to the national security, no question.
Whether someone is at an agency that originates the information

or whether they work for an agency that handles that information,
I think the standard should be the same because the damage would
be the same.

In State there is already a mechanism for investigating leaks or
problems that arise from disclosure of information. Our under-
standing is that it has worked well. We don't understand why we
need something different.

Mr. Kiko. Could you explain that, what that is?

Mr. Hayes. We have a Security Office as part of the State De-
partment, and there is an office in there that works to do investiga-
tions. At the moment, employees are given the opportunity to
submit to a polygraph. It is voluntary at this point. We are in favor
of that because it can go both ways. It can also exonerate employ-
ees where circumstancial evidence may point to guilt where, in
fact, they are not. So it is the employees' option on whether they
wish to do this or not. We are in favor of preserving that, but we
don't think it should go further.

Mr. Kiko. No other questions.

Mrs. Schroeder. First of all, it begins to look as if this is a jobs
bill. Maybe we could interpret it this way because everybody keeps
saying how many more people it is going to take to do all of this.

I think your testimony about what this does for your profession-
alism is something we should take very seriously, because the For-
eign Service has gone through an awful lot, especially in the last
decade, and to add this one more thing really is an affront to your
professionalism.

I guess we hear about the numerous leaks in foreign policy, and
this is one of the areas that White Houses of both parties scream
about. I guess the question is whether those leaks come from
career Foreign Service officers or whether they come from Nation-
al Security Advisers or some other such thing. When we ask the
Foreign Service people, they say it is the National Security Advis-
er; when we ask the National Security Adviser in the White House,
they say it is the Foreign Service people.

How many leaks has the Foreign Service really looked into that
you know of, and how many serious leaks have you heard about
that come from the Foreign Service officers?

Mr. Hayes. That is a difficult question. I do not believe I could
specifically tell you how many instances there were of cases that
involved Foreign Service officers leaking information. There is a
conserted effort in State, as in most agencies, to keep what is truly
classified, what truly would be damaging to the interests of the
United States if it were to go public, to hold that information very
tightly. By holding it very tightly, that usually means it is limited
to the very top levels of the Department. Therefore, if information
does come out, it is most likely going to come from the very highest
levels.

Mrs. Schroeder. In the State Department?

Mr. Hayes. I think in the entire Foreign Service apparatus, yes.

Mrs. Schroeder. Those very high levels are very often political
appointees.

Mr. Hayes. Very often, yes.

Mrs. Schroeder. The stuff that you hold very tightly — I assume
you are not in that very tightly held ring — but for those who are in

the tightly-held ring, they would be sharing it also with the Na-
tional Security Adviser; they don ; t withhold it from him?

Mr. Hayes. That's correct. A lot of this information is shared
among the various agencies.

Mrs. Schroeder. Is there any kind of a chart this committee
could see of what level Foreign Service officers would be in that
tight ring, and how many of those are political appointees?

Mr. Hayes. We could probably come up with something that
would show the basic organization and how it is spread out and
what the different areas of responsibility, either geographical or
functional, would be. I think it would be, unfortunately, very diffi-
cult — for exactly the same reasons that we feel these directives
won't work — to try to focus and say in this case only these 10
people or 15 people knew this information.

More likely, it is going to be, by the time it filters out to all the
different levels, it is going to be a much higher number, including
political appointees, career officers, you name it, that received this
access. So it would be almost an impossibility to tightly focus on
the question.

Mrs. Schroeder. If you are a political appointee and you leak
something and you find the President is most dismayed about the
leak, are you apt to blame a career officer?

Mr. Hayes. That is one of our biggest fears, that leaks are fine as
long as they accomplish what the leaker wanted and the leaker
isn't found out by someone who is unhappy about that leak. When
a leak occurs and it gets the wrong reaction, or somebody is in
trouble, I feel that

Mrs. Schroeder. You look for a professional head.

Mr. Hayes. Well, yes. You look for somebody who happens to be
standing around and not too busy at that moment and see if you
can direct the ire at them.

Mrs. Schroeder. As I understand your description of the process,
it really becomes one person's word against the other.

Mr. Hayes. Yes, it boils down to that — I'm sorry, it does not boil
down to that, because I don't think it can ever get to that point
where it is just one or the other.

This is where the voluntary use of polygraphs might come in and
is acceptable to us, that if someone has been unjustly accused, it
may come down to circumstantial evidence or one word against an-
other, and a polygraph might be useful in determining who is re-
sponsible.

Mrs. Schroeder. Are you aware of any leaks from National Se-
curity Advisers?

Mr. Hayes. I think it is common knowledge that a lot of people
in national security agencies, the State Department and all the dif-
ferent agencies, have excellent relations with the press and that a
lot of information is transmitted in both directions.

Mrs. Schroeder. Your diplomacy training is showing.

[Laughter.]

Mr. Edwards. I have a question, Madam Chairwoman.

Who over in the State Department or the Foreign Service is re-
sponsible for classifying information as SCI, sensitive compart-
mented information? I mean, at what level? Would there be several
people who could do this and have a special stamp?

Mr. Hayes. On that, I think it would be at least at the Assistant
Secretary level for various areas. Usually the determination of
what classification a document is given, it is tried to be held at the
working level on the theory that they are the ones who know how
sensitive a piece of information is and what damage could occur.

Mr. Edwards. But your testimony is that hundreds or even thou-
sands of pieces of paper are classified automatically without any
real examination being made as to see whether or not it should be
classified.

Mr. Hayes. That’s correct. But there are a lot of different levels
of classification that go out in all directions. What we are con-
cerned about primarily is the broad range of just the confidential,
secret, top secret classifications, which just about everything is la-
beled as.

Mrs. Schroeder. You now publish a high-quality journal. Is that
submitted for prepublication at this point?

Mr. Hayes. No, it is not.

Mrs. Schroeder. As you read this directive, would it have to be?

Mr. Hayes. I think there are quite a few issues, quite a few arti-
cles, that we publish that would fall under this directive, yes,
ma’am. We would not be happy about that.

Mrs. Schroeder. Counsel, did you have a question?

Ms. Gonzales. Thank you, Madam Chairwoman.

One of the claims that has been made about the directive is that
there is provision for adverse consequences that might be suffered
by an employee if they refuse to take a polygraph examination.
One of the adverse consequences would be the loss of access to clas-
sified information.

How important is that? Is that equivalent to the loss of a job for
some people?

Mr. Hayes. Yes; that is like being banished into the darkness.
Again, everything we deal with is classified. First off, all members
of the Foreign Service have to have a top secret clearance; that is
one of the conditions of service. So the loss of the right to have
access to classified material is basically the loss of your job. There
are no jobs that are out there that anyone would particularly be
interested in that you don’t need a security clearance for.

Ms. Gonzales. Thank you.

Mrs. Schroeder. Thank you very much. We really appreciate the
light you have shed on this subject this morning.

Mr. Hayes. Thank you.

Mrs. Schroeder. Our final witness this morning is Norman
Ansley, who is the Chief of the Polygraph Division at the National
Security Agency. We have asked him to testify as an individual
expert on polygraphs and will limit our questions to the art of lie
detection and not to the policy behind the order.

We thank you for coming, since most of us don’t know that much
about all the technical aspects of this. We appreciate having your
testimony.

TESTIMONY OF NORMAN ANSLEY, CHIEF, POLYGRAPH DIVISION,
OFFICE OF SECURITY, U.S. NATIONAL SECURITY AGENCY

Mr. Ansley. Thank you for inviting me.

I am Norman Ansley and I am Chief of the Polygraph Division of
the National Security Agency, which is part of the Department of
Defense. I understand you would like me to describe polygraph in-
struments, polygraph techniques, and discuss validity.

The current instrument used by the Federal agencies is a prod-
uct of 85 years of cooperative research between scientists and the
practitioners. The physiological channels they now record are the
product of that lengthy research, and the instruments are of scien-
tific quality. We record respiration, electrodermal response, and
cardiovascular responses. The information is recorded on a moving
chart which moves at ZV 2 millimeters per second. That's about 6
inches a minute.

In each of the polygraphic examinations there are at least two
polygraph charts of several minutes each. In more complex situa-
tions, there may be as many as six or seven charts. The minimum
time for an interview is about 1 hour, sometimes IV 2 to 3 hours,
occasionally longer.

In the pretest interview the subject of the examination is read a
full statement of his rights. In all cases, that includes mention of
the fifth amendment right to avoid self-incrimination. It is men-
tioned that the subject may refuse to answer any questions, and
that the subject may terminate the interview at any time. In a
criminal case, the Miranda warning is included, or article 31 of the
Uniform Code of Military Justice if they're in the military service.

When the polygraph is used in the determination for clearance
and access to classified information, we advise the person of the
Privacy Act of 1974, which includes a discussion of the principal
purposes for which the information will be used, and mentions that
the disclosure of the information to us is voluntary and that the
information will be considered confidential. It warns a person that
any information provided relating to the violation of criminal laws
may be disseminated to law enforcement agencies.

Following the explanation of the subject's rights, there is a
review of the subject's general health and fitness to take the poly-
graph examination. After that the examiner reviews the issues
that are to be resolved during the polygraph examination, which
includes an opportunity for the subject to explain in detail their
views of the matters under consideration. Working with the exam-
iner, the subject and the examiner arrive at mutually acceptable
questions to resolve those issues.

When the technique involves control questions, these questions
are also reviewed in discussion with the subject and they must be
agreeable to the subject. This is also true of irrelevant questions
and other questions that are a part of the technique.

The testing technique is then explained in detail to the subject.
The attachments which are placed on the subject are also ex-
plained in detail. The subject is asked to sit still, pay attention to
the questions, answer the questions with a definite “yes" or “no,"
as appropriate. Upon completion of the test series, the examiner
makes an initial examination of the charts and the results are
given to the subject.

If those results indicate deception, the subject is told that and
the specific questions are discussed. The subject is given every op-

portunity to explain his reactions to those questions and to make
any admissions he chooses to make.

Now. just as there are several standardized intelligence tests and
standardized aptitude tests, there are also a number of standard-
ized polygraph test formats. Each of these has its own name, its
own format, and specific applications. Within the Federal Govern-
ment, these techniques include general comparison, read control
question technique, positive control question technique, relevant or
irrelevant technique, building knowledge technique, eco-tension
technique, and there are some standard variations of these. I am
prepared to discuss these in greater detail if the committee so de-
sires.

The validity of polygraph techniques has been the subject of re-
search over a period of more than 85 years, involving scientists in
over a dozen countries. Lengthy research projects have been con-
ducted in the United States, Japan, Israel, Czechoslovakia, Canada,
Poland, all of them arriving at rates of validity significantly above
chance, and high enough to indicate the positive value of the tech-
nique.

There are two kinds of polygraph research. One involves the fol-
lowup of real criminal cases in which the polygraph results are
compared with either the final outcome of the case or an independ-
ent adjudication of the facts in the case file. More than 1,900 crimi-
nal cases have been followed up in the United States, Israel,
Poland, Canada, and Japan, and the average agreement of the
polygraph test results with the final conclusion of the case is 96
percent. More than a dozen such research projects have been con-
ducted, with the largest one being by the Commonwealth of Virgin-
ia, in which the validity of the 959 cases they followed up was 98.3
percent.

The other methods of research has been to conduct mock crimes
in laboratory settings and conduct polygraph examinations to de-
termine the frequency with which these crimes can be detected.
Some of these lab methods are intended to experiment with tech-
niques, some to test types of equipment, and some to look at the
variables among subjects. For example, quite contrary to our expec-
tation, two lengthy studies of psychopaths indicated that they are
just as readily detected by the polygraph as is the normal popula-
tion. However, in testing illusional psychotics, they produce a much
higher rate of inconclusive and incorrect results.

Approximately 30 laboratory studies involving a total of more
than 1,000 subjects have arrived at an average validity in excess of
93 percent. These studies also indicate that polygraph is efficient in
a variety of cultures.

Such studies have also been used to validate the specific chan-
nels of physiological information that we now rely on; that is, res-
piration, electrodermal response, and cardiovascular response. The
difference between the validity and 100 percent is not entirely a
matter of error. In practice, unlike the laboratory experiments, the
examiner always has the option to call the test results inconclu-
sive. That option is extremely important and it is frequently exer-
cised, as it is the strongest protection we have against making
errors.

In addition, in Federal agencies all polygraph examinations and
polygraph reports are reviewed by supervisors to be sure that the
polygrapi charts support the conclusion of the examiner.

That ct includes my introduction. I am here to answer any techni-
cal questions you have. I am not prepared to answer questions of
policy, 9 C . these will be answered by other witnesses from the De-
fense Department, I believe, next week.

Mrs. Schroeder. Thank you very much.

Congressman Edwards?

Mr. Edwards. Thank you.

Mr. Ansley, I was reading in “Dear Abby's” column the other
day where somebody said they had “beat the machine." This
person was addicted to drugs and alcohol and a wayward way of
life, and had lied all the way through and the machine didn't catch
it. Can that happen? ^

Mr. Ansley. Possibly. I think what they suggested in that
column was that they had practiced dissociation by thinking of
something else. In a proper polygraph test, the person really has to
think about the questions, and particularly since some are an-
swered yes and some are answered no, they really have to pay at-
tention.

Of course, I have no knowledge of the facts in that case, I really
don't.

Mr. Edwards. Do the operators vary quite generally throughout
the United States? I am sure where you work you have expert op-
erators, well-trained, isn't that correct?

Mr, Ansley. Yes.

Mr, Edwards. But we have heard — and we have had some con-
nection with the subject and some witnesses before us — that you
could just as well get an operator who doesn't know how to work a
machine and the results will be all out of whack; is that correct,
also?

Mr. Ansley. I can't speak for the whole profession or everyone in
the United States, but from what I see, I don't think the situation
is anywhere near as bad as that described. There may be some in-
competent examiners in the field, but most of them are well
trained, properly trained, and have served internships. Many of
them also are retired from Federal service that are in private prac-
tice.

Mr. Edwards. Are there national standards, State standards?

Mr. Ansley. Yes; the American Polygraph Association has set
national standards which are closely followed. Many of those are
reflected in state legislation or in the issuances of licensing boards,
so that they become formalized. There are principles of practice set
up by the American Polygraph Association.

They also accredit the polygraph schools. There are more than 30
schools in the United States, and some in foreign countries have
been accredited and are regularly inspected by the American Poly-
graph Association. They set up standards for the teaching of physi-
ology, psychology, polygraphic technique, and chart interpretation.

Mr. Edwards. Your tests indicate the reliability is about 95 per-
cent day in and day out?

Mr. Ansley. Yes; I believe it is that, perhaps a little higher.

Mr. Edwards. Thank you very much.

Mrs. Schroeder. Thank you.

Counsel, do you have any questions?

Mr. Kiko. Following up on one question, could you explain the
qualifications that one has to have in your agency to be a poly-
graph examiner?

Mr. Ansley. We are part of the Defense Department and the De-
fense Department establishes standards. Those standards not only
include the appropriate clearance, a minimum age of 25, a bacca-
laureate degree, and also specify that we take a polygraph exami-
nation as part of understanding it before we are sent to school. It
also involves 3 months of intensive polygraph training at a Federal
school, which is at Fort McClellen, Ala., and then a year of inten-
sive internship in which their work is closely supervised.

Mr. Kiko. And how many polygraph examiners do you have in
your particular agency? .

Mr. Ansley. About 28 in our agency.

Mr. Kiko. How long does a particular polygraph examination
take?

Mr. Ansley. A minimum time of about an hour, as long as is
necessary. An average perhaps is lVs to 3 hours, occasionally
longer. Whatever time it takes to work with a person.

Mr. Kiko. The individual knows the questions that are asked
ahead of time?

Mr. Ansley. Absolutely, and has discussed them, too. He is not
just told what he is going to be asked, but it is a matter of discus-
sion and agreement.

Mr. Kiko. I have no further questions.

Mr. Edwards. I have one more question to follow up what Mr.
Ansley said to me.

I believe you said, Mr. Ansley, that one could beat the machine
with a process called dissociation?

Mr. Ansley. I would say if the examiner was incompetent, that
is possible. But it is not with regular techniques used in the Feder-
al service where they are widely taught. You know, that would not
be an appropriate countermeasure, not a very effective counter-
measure.

Mr. Edwards. Thank you.

Mrs. Schroeder. The procedures that you describe, that are for
the Defense Department or are those Government-wide?

Mr. Ansley. Well, I think they are generally Government-wide.
Because of the discussions with the Federal Interagency Polygraph
Committee, we all discuss the same kinds of techniques. Moreover,
almost all Federal examiners are trained in the same school, the
same Federal school

Mrs. Schroeder. Are you sure they are Government-wide, or you
think they are Government-wide?

Mr. Ansley. I’m sorry?

Mrs. Schroeder. Are you sure they are Government-wide, or do
you think they are Government-wide, because I notice you kept
saying it was your agency.

Mr. Ansley. There may be minor differences between different
agencies, in the Treasury Department or Justice Department. But
basically we all use the same polygraph techniques and the same
equipment.

Mrs. Schroeder. And you could contract out to have this done, is
that correct?

Mr. Ansley. We have not done so.

Mrs, Schroeder. But you could?

Mr. Ansley. It hasn't occurred to me, but I suppose that's possi-
ble. There would be problems, though, with the handling of classi-
fied information and with clearances, and the requirement that
they be experienced Federal investigators which is always a prereq-
uisite in all the agencies,

Mrs. Schroeder. And that means they have to be licensed?

Mr. Ansley. Yes, or certified in the Federal service, licensed in
state circumstances, which amounts to pretty much the same
thing.

Mrs. Schroeder. How long does it take to train a person?

Mr. Ansley. There is 3 months of classroom work and practice
testing, and then a year of internship,

Mrs. Schroeder. Tell me what you look like when you take one
of these tests. What do they attach to you?

Mr. Ansley. There are rubber tubes placed around the chest and
abdomen; there is a blood pressure cup which everybody is familiar
with

Mrs. Schroeder. Through your clothing?

Mr. Ansley. No, over the clothing. And two small electric plates
that are placed on the fingertips. That is the extent of the attach-
ments.

Mrs. Schroeder. And it is attached to a machine that is about
how big?

Mr. Ansley. The instrument can be placed in a briefcase.

Mrs. Schroeder. And can the person who is being tested watch
needles go back and forth?

Mr. Ansley. No, because they then will react to their own reac-
tions, so they don't watch the test but they may see the charts
afterward.

Mrs. Schroeder. Are you trained on how to watch the test? I
mean, do you have to have a poker face?

Mr. Ansley. Yes.

Mrs. Schroeder. So you “know when to hold' em, know when to
fold' em" type of thing?

Mr. Ansley. Yes. You keep an even tone, since the person isn't
watching you during the test. The one exception is where they may
be deaf. The examiner conducts all the questions in a monotone so
as not to create a response.

Mrs. Schroeder. Do you tape it so that you know what he or she
is doing?

Mr. Ansley. Yes; we do. All of our polygraph examinations are
taped.

Mrs. Schroeder. When you are giving one of these tests, do you
watch the needle go back and forth at the same time that you're
talking, or is that recorded and you look at it later?

Mr. Ansley. It is recorded, but I can watch it while it is going
on. I am usually watching the person who is taking the test, but I
do have to look down and make marks on the chart.

Mrs, Schroeder. If an employee refuses to take the test he or
she loses their job. How can you say taking the test is voluntary?

33-307 0—84 3

Mr. Ansley. I think that is a little out of my department. All I
can tell you about voluntariness is that we can't test somebody who
will not cooperate. Vm saying not only do you cooperate with the
test, but you physically have to cooperate

Mrs. Schroeder. I see. You're talking about physically cooperat-
ing rather than

Mr. Ansley. And mentally, too, because they have to discuss
with us the questions and they have to agree that the questions are
acceptable and that the questions are limited to the issue under in-
vestigation, so that the questions are appropriate.

Now, when a person goes through all that procedure with you,
not only do they sign a legal statement, but they have actually
gone through all these procedures with you. They have discussed
the questions with you. They voluntarily cooperate during the test-
ing. I have to think that it's voluntary.

But if you are talking about policy with respect to whether or
not they take the test, I think that is really out of my line.

Mrs. Schroeder. So when you said voluntary, you were meaning
in that sense?

Mr. Ansley. Yes.

Mrs. Schroeder. Congressman Edwards.

Mr. Edwards. But you're still sitting there with Unde Sam, and
the majesty and the power of the Federal Government is asking
you these questions in this monotone you described.

If you were the subject, with your expertise and with your back-
ground, and you were determined to disassociate every question all
the way through — you really aren't listening because you are train-
ing yourself not to listen — how do you think you would come out?
Do you think the machine would catch you?

Mr. Ansley. No; and I think they would probably use a tech-
nique that would make it impossible for me to do that. If I don’t
know the sequence of the questions and I do know that some are
answered yes and some are answered no, I had better pay attention
so I give the right answer.

Also, in someone dissociating, they generally have a delayed
answer. It isn't responsive to the question. They are trying to listen
only to the sounds and not to the content of the question. So it is
very difficult for the person to answer yes or no if he doesn't know
what the content of the question is. If he listens to the content of
the question, he is no longer dissociating.

Mr. Edwards. Have you run into people who have been able to
successfully use this method of dissociation?

Mr. Ansley. No; that hasn't been a practical problem for poly-
graph examiners.

Mr. Edwards. And you don't think you could beat the machine
yourself with all the experience you have had?

Mr. Ansley. I don't think so. I have taken a number of tests,

Mr. Edwards. Do you know anybody that works with you that
has and could?

Mr. Ansley. No; except to just refuse.

Mr. Edwards. A hundred percent of your operators would not be
able to deceive the machine?

Mr. Ansley. I don't know of any practical manner for an exam-
iner or psychologist to use that would assure him with certainty

that he is going to pass a test when he is, in fact, deceptive. Of
course, nondeceptive people have no reason to engage in counter-
measures. They want you to succeed. They want that examiner to
be accurate. It is only the deceptive person that is hoping the ex-
aminer will not succeed. So the mere presence of countermeasures
itself is somewhat indicative, although we don’t make a conclu-
sion —

Mr. Edwards. Or the person who is just in a funk?

Mrs. Schroeder. Tranquilized.

Mr, Edwards. Thank you.

Mrs. Schroeder. If there is a story in the newspaper that is a
leak of highly classified information, and let’s say that information
was in three or four departments cables, different cables, different
departments and so forth, you are given the mission to find out
who leaked it. How do you do that? How do you narrow down the
kind of questions?

Mr. Ansley. First, the polygraph never stands alone. There is
always an investigation first to narrow the number of people to be
examined, to narrow the issues. If it involves more than one
agency, one agency would be in charge of the direction of that in-
vestigation and the circumstances, probably the Federal Bureau of
Investigation. Then they would ask for the cooperation of other
agencies. So you don’t work in a vacuum. You have to look at the
particulars of the case.

Then when you talk to the indivdual person and their experience
and precisely what role they have in it, you have to rephrase those
questions so that they are appropriate. So there isn’t any way that
I can give you a general answer to that.

Mrs. Schroeder. I guess what I am digging at, you don’t use this
for a “fishing expedition”?

Mr. Ansley. No. It is not used at the onset of an investigation. In
fact, the regulation in the Defense Department prohibits that.
There must be an investigation. People must be interviewed before
they are given a polygraph exam.

Mrs. Schroeder. Do you know if that is just a Defense require-
ment?

Mr. Ansley. That is a Defense Department requirement. I really
can’t speak whether that exists in the other agencies. But as a
matter of practice, I know that polygraph examinations are given
as an adjunct to the investigation, not in place of it.

Mrs. Schroeder. Counsel, do you have a question?

Ms. Gonzales. Thank you.

One of the concerns that has been raised about polygraph tests is
that while it is true the machine may accurately register or meas-
ure stress of the subject, it is incapable of discriminating or deter-
mining the source of that stress; is that correct?

Mr. Ansley. Yes.

Ms. Gonzales. Do I then take it that the role falls to you to de-
termine what the source of the stress is, you as the operator?

Mr. Ansley. No. The testing format designed by psychologists
and psychophysiologists is designed to take account of the physio-
logical responses and give you a basis for statistical comparison, so
it is not just a subjective review of charts.

Ms. Gonzales. But you are still determining from whatever fac-
tors those are, you are trying to determine what it was' that caused
the stress to register on your machine based on those different
guidelines that you mentioned?

Mr. Ansley. By having the test given in isolation, where there is
the absence of outside influences, we are looking to the question
content to be the cause of the response. So that is why there is a
variety of different kinds of questions in a testing format, as there
are in all psychological tests.

In other words, t h e adjudication of, the chart is purely an arbi-
trary thing. That is done on a statistical basis.

Ms. Gonzales. The last question I have, one point that was made
in earlier hearings on this — I can’t remember whether it was on
the Senate or House side — earlier hearings on this issue, their
sense was that any well-trained investigator and interviewer who
spends as much time as a polygraph operator does with an individ-
ual, interviewing them, asking the same kind of questions you ask
in your pretest, having access to the same kind of files or informa-
tion that you do, asking — without using the machine, but asking
the same kinds of questions that you do, repeating them over and
over, if necessary, and just having that kind of lengthy, maybe 2-
hour discussion or whatever, that they would probably get about
the same type of— they would at least get more than a 50-percent
right assessment of an individual and probably much higher than
what your regular interviews find.

Therefore, the question really is, How much more does a poly-
graph machine itself add? How would you respond to that?

Mr. Ansley. I think two things are lacking there. Experience is
certainly a good teacher but there is no precision involved. It may
lack the cooperation of the subject, where the person may not have
that opportunity to clarify the issues

Ms. Gonzales. In the discussion of

Mr. Ansley. You don’t have the same controls over that inter-
view that you would in a polygraph interview.

Ms. Gonzales. But if the person had the same training as you
did, in terms of how to clarify those kinds of questions, would they
then be in the same situation that you are?

I guess my last point would be, in fact, what you are saying is
that the lie detector machine is a scientifically reliable instrument;
yet, at least in criminal cases, the courts have found that they will
not accept it on .a par with other scientific information such as fin-
gerprints and voiceprints and all that; is that not correct?

Mr. Ansley. I believe that 26 States admit polygraph evidence
under stipulation, and at least 3 States over objection of opposing
counsel, and over half the U.S. Circuit Court judges have the dis-
cretion to admit polygraph evidence if they choose to do so.

Ms. Gonzales. So it is left on an individual basis?

Mr. Ansley. It is usually up to the discretion of the trial judge.

Ms. Gonzales. Thank you.

Mrs. Schroeder. Thank you very much. With that, we will close
today’s hearing. We thank everybody who was here to participate,
and we thank you, Mr. Ansley.

[Whereupon, at 12:05 p.m., the subcommittees were adjourned.]

PRESIDENTIAL DIRECTIVE ON THE USE OF
POLYGRAPHS AND PREPUBLICATION REVIEW

THURSDAY, APRIL 28, 1983

House of Representatives, Subcommittee on Civil and
Constitutional Rights, Committee on the Judici-
ary; and the Subcommittee on Civil Service, Com-
mittee on Post Office and Civil Service,

Washington , D.C.

The subcommittees met, pursuant to call, at 9 a.m., in room 2141,
Rayburn House Office Building, Hon. Patricia Schroeder (chair-
woman of the Subcommittee on Civil Service) presiding.

Present: Representatives Schroeder, Edwards, Kastenmeier, Sen-
senbrenner, Pashayan, and Gekas.

Staff present: Helen C. Gonzales, assistant counsel; Philip Kiko,
legislative assistant; and Andrew A. Feinstein, staff director, Sub-
committee on Civil Service.

Mrs. Schroeder. The subcommittee will come to order. I think it
may be the busiest morning on the Hill, so we are off and running
at a rapid pace. I want to thank everyone for being here.

I would like to recognize the cochairman, Congresssman Edwards
from California, at this time.

Mr. Edwards. I thank the chairwoman.

I am looking forward to the testimony from the expert witnesses
that we have today. I hope that some of the witnesses will direct
their testimony to the allegation that there has been this tremen-
dous increase in leaks of classified information. If there has been, it
is something that Congress doesn't know very much about. So I
hope that we will hear more about that from the witnesses today. I
look forward to the testimony.

I thank you.

[The statement of Mr. Edwards follows:]

Opening Statement by Congressman Don Edwards

Today we convene our second hearing on issues raised by the March 11th Presi-
dential Directive on Safeguarding National Security Information. These hearings
are jointly sponsored by the Judiciary Subcommittee on Civil and Constitutional
Rights and the Post Office and Civil Service Subcommittee on Civil Service, chaired
by Congresswoman Schroeder.

Last week our witnesses expressed concern regarding the scope of the Directive.
More disturbing, however, to them and to the Subcommittees sponsoring these hear-
ings is the thrust of the Directive especially when taken in the context of other Ad-
ministration actions to stem the free flow of information in this country.

The President's Directive was based on recommendations contained in an interde-
partmental report on Unauthorized Disclosure of Classified Information. The
Report, and the President's Directive, rationalize the broad requirements in the Di-
rective on the fact that there has been a tremendous increase in leaks of classified

( 65 )

information. However, neither the Report or the President's Directive provide evi-
dence of how leaks have damaged the national security.

While there is a recognized need to restrict the release of potentially dangerous
and sensitive information, that needs for public access to information which is cen-
tral to a free and open society.

This morning we will hear testimony from a number of Administration witnesses
on the issues raised by the President’s Directive, and the Report upon which it was
based must be balanced against the equally legitimate need.

Mrs. Schroeder. Thank you.

Congressman Sensenbrenner?

Mr. Sensenbrenner. I have no opening statement.

Mrs. Schroeder. I am going to put my opening statement in the
record in the interest of time. We will put all of the witnesses’
statements in the record and, if they could summarize, that would
be very helpful, because at about 11 o'clock we are anticipating all
sorts of chaos breaking out around here as we go into session.

[The statement of Mrs. Schroeder follows:]

Statement of Representative Pat Schroeder

Chairman Edwards, since we last convened these hearings a week ago, there have
been a couple of significant developments relevant to this issue.

First, we learned in yesterday's paper that Dr, John F. Beary HI, acting Assistant
Secretary of Defense for health affairs, wrote Defense Secretary Weinberger last De-
cember to say that polygraphs are an unreliable instrument which "misclassifies in-
nocent people as liars." This devastating memorandum, which I ask be made part of
the record, suggests that there is little scientifically acceptable analysis of the poly-
graph and that analysis which exists does not support the validity of the lie detec-
tor. As you know, the Presidential Directive we are looking at would greatly expand
the use of the polygraph in the Federal government.

Second, we learned that a group of lawyers, administrators, and investigators in
the Office of Civil Rights of the Department of Education have had their positions
reclassified as “critical-sensitive” and are now required to undergo rigorous security
clearances, which include full field investigations covering the last five years of
their lives. Those employees of the Department of Education who are subject to the
investigations, as well as many of us who read the story, wondered what defense
plans or intelligence information was possessed by these lawyers and investigators.
In reviewing the underlying Executive order and regulations, we learned that “na-
tional security" is defined so broadly that virtually any Federal worker could be
subject to a lengthy and potentially embarassing fishing expedition into their lives.
Section 6 of the Presidential Directive tells the Attorney General to toughen up this
vague and frightening security program.

These two events reinforce and supplement what we learned at last week’s hear-
ing. We learned that prepublication review is quick and painless if you are a former
Cabinet official or an advocate of Administration policy and is lengthy and nitpick-
ing if you are not. We learned that the government does not have enough polygraph
examiners to conduct all the polygraph examinations which the directive mandates
and so the process of giving polygraph exams will, of necessity, be selective. We
learned that this directive is really only one aspect of the multi-faceted war against
public information being waged by this Administration.

Virtually every aspect of this directive — prepublication review, polygraph exami-
nations, limitations on access to the media, loyalty security screening of employ-
ees — is certain to be applied selectively. The consequences of this selectivity are
foreseeable and frightening. This directive will breed a new level of timidity into
Federal workers. Their willingness to speak out, even internally, will vanish. This
directive will cut off the public from much of the information it needs to make in-
formed decisions. A democracy just cannot function without free flow of informa-
tion,

I call on the President to reconsider and withdraw this directive. Its cost to our
government is too high.

Mrs. Schroeder. Our first witness this morning is Mr. Richard
Willard, Deputy Assistant Attorney General in the Civil Division
in the Department of Justice. Mr. Willard was chairman of the

interdepartmental group which issued the report on unauthorized
disclosures of classified information. Since the President's directive
was based on the recommendations in that report, we look forward
to your discussing with us this report, Mr. Willard. The floor is
yours.

TESTIMONY OF RICHARD K. WILLARD, DEPUTY ASSISTANT AT-
TORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE

Mr. Willard. Thank you, Madam Chairwoman.

Since my prepared statement is being submitted for the record, I
will not read it at this time.

In addition to the prepared statement that was submitted to the
committee, we have also supplied, at your request, numerous docu-
ments, including the report of the interdepartmental group which I
chaired and which formed the basis for the President's directive, as
well as other background information and memorandums on these
subjects.

I believe that we have provided the committee with a cross-sec-
tion of information upon which the President relied in deciding to
issue his directive on this subject.

Mr. Sensenbrenner. Pardon me, Madam Chairwoman. If that
report of the interdepartmental group has not been included in the
record, I would ask unanimous consent that it be so at this time.

Mrs. Schroeder. Without objection.

The information follows:]

‘See, Willard Report, Appendix 2]

The statement of Mr. Willard follows:

Statement of Richard K, Willard, Deputy Assistant Attorney General, Civil

Division

Thank you, Madam Chairwoman and Mr, Chairman. I appreciate the opportunity
to describe for you the background and purpose of President Reagan's March 11,
1983, directive on safeguarding national security information.

Unlawful disclosures of classified information damage national security by provid-
ing valuable information to our adversaries, by hampering the ability of our intelli-
gence agencies to function effectively, and by impairing the conduct of American
foreign policy. The President's directive requires that additional steps be taken to
protect against unlawful disclosures of classified information.

This directive is based on the recommendations of an interdepartmental group
convened by the Attorney General. I served as chairman as this group, which also
included representatives designated by the Secretaries of State, the Treasury, De-
fense, Energy and the Director of Central Intelligence. Copies of the report of this
group, which is unclassified, have been furnished to the Committee.

SCOPE OF DIRECTIVE

The directive deals only with disclosures of classified information. By Executive
Order, the only information that can be classified is information which “reasonably
could be expected to cause damage to the national security’' if released without
proper authorization. The Executive Order prohibits the use of classification to con-
ceal violations of law, inefficiency or administrative error, or to prevent an embar-
rassment to a government agency or employee.

The unauthorized disclosure of classified information has been specifically prohib-
ited by a series of Executive orders dating back to 1940. Such disclosures also violate
numerous more general standards of conduct for government employees based on
statutes and regulations. Moreover, in virtually all cases the unauthorized dis-
closure of classified information potentially violates one or more federal criminal
statutes.

SUMMARY OF PROVISIONS

The directive imposes additional restrictions upon government employees who are
entrusted with access to classified information, and upon government agencies that
originate or handle classified information.

More employees will be required to sign nondisclosure agreements, including pro-
visions for prepublication review, such as were approved by the Supreme Court in
United States v. Snepp (1980).

Agencies will be required to adopt policies concerning contacts between journal-
ists and persons with access to classified information, so as to reduce opportunities
for unlawful disclosures. However, no particular policies are mandated in the direc-
tive.

Agencies will be required to adopt new procedures so that unlawful disclosures of
classified information will be reported and analyzed more efficiently.

The directive also establishes a new approach to investigating unlawful disclo-
sures to replace the past practice of treating such matters as purely criminal inves-
tigations.

FBFs authority is clarified to permit unlawful disclosures of classified information
to be investigated, even though it is anticipated that a successful investigation will
lead to administrative sanctions (such as demotion or dismissal) rather than crimi-
nal prosecution.

All agencies with employees having access to classified information will be re-
quired to assure that their policies permit use of polygraph examinations under
carefully defined circumstances.

There will be no change in the current practice of targeting investigations at em-
ployees who are suspected of unlawfully disclosing classified information, rather
than at journalists who publish it.

The directive provides that employees found by their agency head to have know-
ingly disclosed classified information without authorization or to have refused coop-
eration with investigations will be subject to mandatory administrative sanctions to
include, as a minimum, denial of further access to classified information. Existing
procedural safeguards for personal actions involving federal employees remain
unchanged.

CONCLUSION

Unlawful disclosure of classified information is a long-standing problem that has
increased in severity over the past decade. This problem has resisted efforts at solu-
tion under a number of Administrations.

This directive is not expected to solve the problem overnight. It is designed to im-
prove the effectiveness of our present program and, over time, to reduce the fre-
quency and seriousness of unlawful disclosures of classified information.

Thank you very much, Madam Chairwoman and Mister Chairman. This concludes
ray statement. I would be happy, of course, to answer any questions you or the com-
mittee members may have.

Mr. Willard. In view of the fact that we have provided already
the committee these materials, I have nothing further to say by
way of an opening statement, and I am prepared to answer any
questions that you or the other members have.

Mrs. Schroeder. As you know, we had a day of hearings on this
before in which wei asked lawyers how they they would interpret
them and what would they do if they had clients who were in this
position, and so forth. To these committees I think it was really
rather frightening what they were saying. It worried us very, very
much.

The problem we have had is understanding what evidence there
has been other than a few anecdotal stories that the panel really
had the hard evidence of unauthorized disclosures that really
moved you to go this far in the direction that you went.

Mr. Willard. Madam Chairwoman, the group that I chaired was
mostly a legal group that looked at measures that could be taken
to solve the problem. Those of us who participated in the group

were aware of numerous instances of unauthorized disclosures of
classified information.

Mrs. Schroeder. We are not. Could we have those? We are not
aware of those. All we are trying to do is find out what has caused
this response.

Mr. Willard. I understand. We cannot provide examples of those
unauthorized disclosures publicly, because that would require get-
ting into classified information.

There are two reasons for that. One is that, although informa-
tion may leak out in the press, for the Government to officially ac-
knowledge that that was classified information would confirm its
accuracy and compound the damage to the United States caused by
the disclosure itself. This is a principle that has been recognized by
the courts supporting a basis for continued classification of this in-
formation, even after it has already come out.

The second reason we can't disclose examples, and more impor-
tant, is that, in order to describe how a piece of information
harmed the country's interests when it was disclosed, we would
have to disclose additional classified information. For example, the
fact that there are 100 B-15 bombers in Patagonia may be classi-
fied information and, if that gets out, it could harm the country.
But to explain how that compromised our intelligence network op-
erating in Patagonia would further compound the damage, because
to explain that would require disclosing a lot more classified infor-
mation. So, for those two reasons, we can't publicly give examples.

We did receive a letter from Chairman Edwards 2 days ago
asking us to provide these examples to the committee. We respond-
ed yesterday that we would be pleased to provide those examples to
the committee in an executive session. We would be pleased to
meet with your staff to arrange security precautions so that they
can be provided.

Mrs. Schroeder. I guess that is really all that is left to us. As I
say, from our prior hearings, there appears to be very serious
harm, I think, in as broad and as comprehensive a restriction as
you are putting on people. I think it is terribly harmful to the
public.

It just seems to me that it is incumbent to make the case to the
public as to why you need to do that. But you are saying that you
cannot do that, you can only do that secretly.

Mr. Willard. That is correct, Madam Chairwoman.

This is not a new problem. It has been studied by congressional
committees in the past. In 1978 and 1979, the House and Senate
Intelligence Committees did hold hearings on the subject of leaks of
classified information and did prepare reports. We have never sug-
gested that it is a problem that has greatly increased in severity in
recent years. It is a problem that has always been serious and has
continued, and it has been studied by Congress in the past.

Mrs. Schroeder. Our concern is to make sure that the leaks that
you are talking about have truly harmed the national interests
rather than political interests.

As you know, there are things that can be embarrassing and, as
the author of the whistleblower legislation that we passed a couple
of years ago, we know that some of the most stringent reprisals
have been against whistleblowers who have blown the whistle on

things that people should have known about. The very strong con-
cern I have is that this type of thing will really inhibit whistle-
blowers at one end; the other end is people who have left the ad-
ministration or left the Government, I think, will have incredible
restrictions put upon them when it comes to writing op-ed pieces or
any other such thing.

In other words, it really appears that there will be one party line
and it will be very difficult to deviate from that. You can't have
whistleblowers and you can't have people who have retired criti-
cize, and it is all in the name of some national security problem,
but I really question whether it isn't more a political problem.

Mr. Willard. Madam Chairwoman, you mentioned a couple of
aspects of the directive.

With regard to whistleblowers, as I am sure you are aware, the
whistleblower law draws a clear distinction between people who
blow the whistle on unclassified matters and people who disclose
classified information. The Whistle-Blower Act does not protect
Government employees who disclose classified information to the
public. It provides instead that they can be protected if they dis-
close the information to an inspector general or to the special coun-
sel of the Merit Systems Protection Board.

We think that represents a very sound judgment on the part of
Congress that classified information deserves protection, and that
just because someone thinks that he may be uncovering wrongdo-
ing does not justify any Government employee citing unilaterally
to make that classified information public.

Mrs, Schroeder, I hear what you are saying, except, once again,
we haven't even seen that whistle-blower protection being ex-
tended. There has been tremendous trouble. We thought we wrote
the law well, but we don't see it being administered well. That may
be part of the suspicion that I have when I see this, and once
again, trust in big brother, we are going to be fair as we look at all
of these things, and so forth.

I have taken much too much time. Chairman Edwards, did you
have some questions?

Mr. Edwards. I would first like to yield to the gentleman from
Wisconsin,

Mr, Sensenbrenner. Thank you very much.

First of all, I appreciate your willingness to disclose chapter and
verse to this committee in an executive session. I think that this
has been an unusual willingness to level with the committee in a
manner which does not compromise classified information, and
which allows the committee members to reach their own conclu-
sions on whether the leaks were in fact severe enough to require
the new regulations that are being proposed.

I would like to elaborate a little bit more on the questions that
Congressperson Schroeder has stated. The regulations very clearly
apply only to Reagan administration officials. They do not apply to
officials of previous administrations. It is my understanding that—
even though I was out of town last weekend — there were op-ed
pieces that appeared on the press highly critical of the administra-
tion from both former CIA Director Turner and former Secretary
of State Vance.

Could you tell us if you know whether these pieces were volun-
tarily submitted by Mr. Turner and Mr. Vance for prepublication
review?

Mr. Willard. I understand that Admiral Turner submitted his
piece for review. I think CIA will be having a witness later this
morning who can probably provide more details as to how it was
accomplished.

I understand that former Secretary Vance did submit his book
for prepublication review voluntarily, although he was not subject
to this kind of a requirement as a matter of contract. I am not sure
what the story was on his article that appeared in the paper.

Mr. Sensenbrenner. Have you heard of any rousing, that there
has been a delay in accomplishing the prepublication review that
has been voluntarily submitted to by former Carter administration
officials?

Mr. Willard. To the contrary. The former officials who have
submitted their materials for review have generally been quite
complimentary about the manner in which it was performed.

Former National Security Adviser Brzezinski in a forward to his
book expressed his appreciation to the Reagan administration offi-
cials who conducted the prepublication review for the careful and
expeditious manner in which they handled that. Also, former At-
torney General Griffin Bell submitted portions of his book which
dealt with intelligence matters to the Reagan Justice Department
for prepublication review, and he also was complimentary about
the manner in which that review was conducted.

Mr. Sensenbrenner. As I recall, even though the former Carter
administration officials were complimentary of the way^ the review
was conducted, their articles and books were not complimentary of
the Reagan administration.

Mr. Willard. That is correct, Congressman.

Mr. Sensenbrenner. I think that that speaks for itself. Here we
have Carter administration officials who have been doing this vol-
untarily, the review has taken place expeditiously, and the materi-
al has been very critical of the Reagan administration and its poli-
cies and, yet, somehow, this censor’s net that has been portrayed as
being all-encompassing and tight has allowed those things to leak
out into the press. I think that perhaps some people have overstat-
ed the scope that is being proposed.

I yield back my time.

Mrs. Schroeder. I am not too sure they were too complimentary
to the Carter administration either.

I would just like to follow up on one thing, though. My under-
standing was Brzezinski only submitted the first chapter of his
book for review; do 3'ou know?

Mr. Willard. Madam Chairwoman, I do not know which por-
tions he submitted. I understand he did submit portions of his
book, but I don’t know which portions.

Mrs. Schroeder. He did not submit the entire book,

Mr. Willard. I am not sure of that.

Mrs. Schroeder. Under this order, he would have to submit the
whole book, though; is that correct?

Mr. Willard. Not necessarily. The order only requires submit-
ting material if it bears some relationship to classified information.

. 72

For example, under CIA's policy currently in effect, only if a
former CIA employee writes about intelligence activities or infor-
mation that is based upon classified information does the material
have to be submitted for review.

If the employee wanted to write simply about general subjects of
foreign policy or something totally unrelated to his work at the
CIA, that would not have to be submitted.

Mrs. Schroeder. Whenever you say that, though, I always re-
member the wonderful small town postman who told me one time
that he hated summer because everybody started using postcards
and he had such trouble knowing when he could talk about be-
cause he could never remember what he read and what he heard. I
think that is one of the problems we have.

Congressman Edwards, I am sorry.

Mr. Edwards. Thank you.

The people who are in the administration now, Secretary Wein-
berger, Hinton, George Bush, President Reagan, Enders, the whole
group that are running this administration, all have access to vari-
ous strategic information, secret information, classified informa-
tion. Does that mean that when they write their memoirs, they are
going to have to submit these memoirs to the current people run-
ning the Government?

Mr. Willard. Yes, Mr. Chairman.

Mr. Edwards. That doesn't bother you?

Mr. Willard. We think that that is a sensible precaution.

As Mrs. Schroeder just said, people who hold high positions like
this have access to a lot of sensitive information. They might not
necessarily remember what is classified and what isn't. We think it
is a sensible precaution for these officials, as many officials have
voluntarily done in the past, to submit their materials for review
to make sure that no classified information gets out inadvertently.

Mr. Edwards. Do you really think that President Eisenhower
should have submitted his extensive memoirs, or Abraham Lin-
coln?

Mr. Willard. I am not sure what President Eisenhower did or
didn't do prior to publication.

Mr* Edwards. Did you have witness after witness that came
befote your panel to certify to you and bring you horrible examples
of why this rather radical proposal is necessary?

Mr. Willard. Mr. Chairman, our group was not a fact-finding
body. We didn't proceed by having hearings or formal proceedings.
It was a working group. People who had participated had been in-
volved in this problem for some period of time. We were all aware
of the kinds of examples that had occurred in the past.

Mr. Edwards. Did you document them in the notes and in the
records of the panel?

Mr. Willard. No, Mr. Chairman. Our panel was not designed to
create a factual record on this problem.

Mr. Edwards. It was just a general understanding amongst the
people that it was out of control?

Mr. Willard. This was not a new understanding. People in the
Government had been aware of this problem for many years.

Mr. Edwards. I have been here for 21 years and I haven’t seen
any articles written about it, examples — aren't you asking the

American people to take this on faith? You are making a simple-
statement, your panel is, that this is a very, very serious problem
and, yet, you won’t even in general tell the American people what
the problem is, except that there are leaks, that there are leaks of
strategic information, of secret information.

There are 18 million pieces of information classified every year,
even the menus at the White House. Any of that information, too,
being released bothers you?

Mr. Willard. Mr. Chairman, this is not a new problem that the
Reagan administration needs addressing. It has been a problem for
many years. Many Presidents have been concerned about it. The
House Intelligence Committee was concerned enough to have hear-
ings on the subject in 1979. The Senate Intelligence Committee was
concerned enough to have hearings and issue a report on the prob-
lem in 1978 after being provided with classified examples of leaks
of national security information.

We are not suggesting that the problem has suddenly grown in
proportions. It has been a problem and has continued to be one.

Mr. Edwards. I appreciate the fact that the Intelligence Commit-
tees looked into the matter. Can you furnish us with their recom-
mendations? Are you acting because of their recommendations or
in support of their recommendations?

Mr. Willard. Mr. Chairman, many of the steps taken in the
President’s directive and recommended in our report were consist-
ent with recommendations made by these committees. The Senate
Intelligence in its report — which actually is the subcommittee
chaired by Senator Biden — concluded that there had been a major
failure on the part of the Government to take action in leak cases,
and thought that this was a serious problem.

Mr. Edwards. Some agencies already use these preclearance con-
tracts or agreements; isn’t that correct?

Mr. Willard. That is correct, Mr. Chairman.

Mr. Edwards. Which ones do and which ones do not?

Mr. Willard. The prepublication review agreements were initial-
ly used by CIA. The National Security Agency also has a prepubli-
cation review program in place.

In addition, for about a year, employees throughout the Govern-
ment with access to sensitive compartmented information, SCI,
have signed an agreement which included a form of prepublication
review in that agreement.

Those are the primary examples that I am aware of where this
program has been in place to date.

Mr. Edwards. The report also says that one of the problems that
we have with the Federal personnel security program is that the
data base no longer exists because the FBI no longer collects infor-
mation about subversive organizations due to uncertainty regard-
ing legal constraints and Attorney General guidelines, the Levy
guidelines.

Do you think that the FBI — is that your recommendation —
should start to collect information on radical subversive organiza-
tions, and so forth?

Mr. Willard. No, Mr. Chairman, that is not a recommendation
of the group.

Mr. Edwards. It said that the problem with the Federal person-
nel security program is the fact — I believe what I said is out of the
report.

Mr. Willard. That is correct, Mr. Chairman. We noted that
there had been a problem in the reduced data base to be used in
personnel clearances and recommended that a group be assigned
the task of studying the entire Federal personnel security program.
That was part of the President's directive which was issued in
March, ana I understand that a group will be formed and will
begin to study the problem. We did not recommend any particular
solutions to the problem.

Mr. Edwards. The consensus, apparently, of your group was that
the FBI should collect more information and make it available.

Mr. Willard. Not necessarily, Mr. Chairman. There are other
ways to assure that personnel security matters are taken care of.
We were simply noting that there had been a deterioration of this
data base and nothing else had come up to take its place. It may be
that more careful attention in background investigations could
counterbalance this loss of the data base.

There may be other steps that could be taken in the program.
We recommend studying all alternatives and not any particular ap-
proach.

Mr. Edwards. But you noted the deterioration — to use your own
words — of these data banks of alleged subversives.

Mr. Willard. That is correct. This is not a new observation. It
has been made many times over the last few years.

Mrs. Schroeder. Congressman Kastenmeier, do you have any
questions?

Mr. Kastenmeier. I guess I just have one question.

Some of the prior witnesses who were critical of this referred
generally to an age-old problem, that is overclassification, as being
at least tangential to this question. I wonder whether in the delib-
erations that gave rise to this directive if it was considered that
perhaps some review should be made of what really is classified in-
formation or that information which could reasonably be expected
to cause damage to the national security. That is one of the criti-
cisms, that altogether too much information falls in that area, and
there is a tendency for persons to disregard it almost or not to
think it was discriminating enough.

Do you have any comment on that question?

Mr. Willard. I agree that overclassification and improper classi-
fication are problems that the Government should be vigilant in
trying to solve. I do not think, however, that overclassification is a
cause of leaks of classified information That is, the kind of classi-
fied information that is leaked and causes us concern is informa-
tion that is quite properly classified and quite properly sensitive.

If information is improperly classified and is leaked, then it
would be our policy not to conduct an investigation. We are only
concerned with information that is disclosed that is properly classi-
fied and causes real or likely damage to national security when it
is released.

Mr. Kastenmeier. I can see that point, and I say that the point
is not central. But the fact is if you have literally a government
that is overclassified, there is the tendency, I think, for people to

disregard classification even those elements of classification they
should know are sensitive.

Mr. Willard. I certainly agree, Congressman, that overclassifica-
tion can erode respect for the classification system. President Rea-
gan’s Executive order on classification has continued the limita-
tions and the prohibitions on improper use of the classification
system.

Mr. Garfinkel, who will be appearing later this morning, from
the Information Security Oversight Office is the Government offi-
cial who is charged with responsibility for supervising the classifi-
cation system, and I think he might also have some comments to
add on the subject.

Mr. Kastenmeier. I thank the witness.

Mrs. Schroeder. Thank you.

You mentioned the Biden report. It didn’t say that there wasn’t
government authority against people who leak classified informa-
tion.

Mr. Willard. That is correct.

Mrs. Schroeder. It was saying that they had not been enforcing.

Mr. Willard. That is correct. It talked about many of the prob-
lems that our group found still in existence — for example, the un-
willingness of intelligence agencies to declassify information to sup-
port a criminal prosecution.

Mrs. Schroeder. Certainly, the unwillingness to declassify, I
think, is certainly the point that Congressman Kastenmeier was
making. The volume of classified information makes the kind of
thing that you are proposing an incredible burden, unless you also
figure out how you declassify it as you move along.

I want to make it clear that the Biden committee did not recom-
mend what you are doing, they just said that they had problems
with classified leaks and the Government had not moved against
them and that this had been a continuing problem.

Mr. Willard. Some of the steps taken by the President’s direc-
tive were echoed recommendations in the Biden report.

Mrs. Schroeder. But not all.

Mr. Willard. Not all, certainly not, and I didn’t try to claim
that.

Mrs. Schroeder. OK.

Mr. Willard. But some of the measures we did take were meas-
ures that were recommended in that report.

Mrs. Schroeder. I just want to say that having served on the
Armed Services Committee for 10 years, one of the things that
scares me so much about this is I remember Congressman Harring-
ton getting in trouble for this, and there was a real brouhaha
about what was going to transpire.

In the last couple of years, we had another Member get in trou-
ble for releasing classified information on television, and nothing
happened. When I asked why the difference in treatment, someone
said it is because he has red, white and blue underwear.

Those kinds of comments scare me a lot, as we see that transpir-
ing.

Mr. Willard. Madam Chairwoman, could I comment on that
point?

Mrs. Schroeder. Sure.

Mr. Willard. I think it is a very good point.

If our program is not pursued evenhandedly and impartially, it
will surely fail. A dual standard for enforcement in this area will
just breed disrespect for the entire classification program.

Mrs. Schroeder. I am only saying we have it now, apparently.

Mr. Willard. We believe that enforcement should be taken
against people who leak classified information, whether it is friend-
ly or unfriendly, if they do not have the authority to do so.

Mrs. Schroeder. I guess my response is that it is better to en-
force it now evenly with the tools that we have rather than do the
big blanket thing that yon are talking about.

I wanted to ask that when you put in the provisions about em-
ployees and the lie detector tests. Did you have anybody from the
Office of Personnel Management or with civil service experience on
your panel?

Mr. Willard. Our recommendations were based on legal memo-
randa prepared by the Office of Legal Counsel at the justice De-
partment under Attorney General Civiletti with regard to use of
the polygraph. Those memorandums were provided to this commit-
tee at your request.

We did not work with OPM in preparing our recommendations,
although they were consulted before the President’s final decision
was made.

Mrs. Schroeder. But they were not at the table talking about
the impact that could have on them.

One final thing I wanted to ask about is section D of No. 1 where
it says that appropriate policies shall be adopted to govern contacts
between media representatives and agency personnel. Could you
tell me what that means? That means current employees, right?

Mr. Willard. That is correct. Some agencies have policies in this
area and some do not. The directive does not require agencies to
adopt any particular kind of policy, but it does ask each agency to
examine this problem and to formulate a policy.

For example, at CIA where all of the employees deal with classi-
fied information virtually all of the time, they may be justified in
having — as I think they do — fairly restrictive policies. Contacts
with the media are supposed to take place through their public af-
fairs office.

Other agencies, such as the Justice Department, have many em-
ployees who rarely, if ever, deal with classified information. We
would probably not be justified in having as restrictive a policy.
But even so, there should be some policies that would be useful in
reducing the opportunity for disclosures of classified information.
At the very least, for example, allowing reporters free access to of-
fices where classified information is used and stored may be a bad
idea.

Mrs. Schroeder, So you are saying that if someone from Health
and Human Services was talking to the media about their disagree-
ment with say, the squealer rule or some other such thing, that
would be perfectly all right because that is not national security;
however, if someone in Treasury were talking about maybe banks
or the economic status of El Salvador or something, that could be
classified. You are going to have a real problem as to what is classi-
fied, aren’t you?

Mr. Willard. I think, as you are suggesting, the policies are
going to have to vary within the Government. That is why the
President's directive does not set any uniform policy. At a Depart-
ment like HHS where they have little, if any, classified informa-
tion, there would be no need for policies of this nature, and the di-
rective doesn't require them. On the other hand, at agencies — the
Department of the Treasury is a good example— that have access in
some portions of it to very sensitive information, there may be a
need for them to have policies.

Mrs. Schroeder. I guess the problem is that intermediate zone
that is so worrisome. It seems to be so healthy — and the wonderful
thing about the Jeffersons of the world is they understood how
healthy it was to have a free press and have access to Government
types who could get you into that debate. There are an awful lot of
things that I have seen that have been declared national security
that I really wish had not been, because I thought it would be
much healthier if we could have had a free and open debate with
the experts who disagreed in those positions being able to speak
out. I think it would have helped national security rather than hin-
dered it.

I guess it is that intermediate range that I worry about the most.
There clearly are definite secrets that you don't want out, but
there are other things that are also policy, not that far off from
HHS except they may not be domestic, they are more internation-
al, where we can't have that debate. We are seeing all of that now
in the Central American discussion that is going on.

Mr. Willard. Madam Chairwoman, I agree that this is a prob-
lem of balancing interests and something of a continuum, and
there is a gray area.

It is our view, though, that over the past few years, the balance
has tilted too far one way, too much information that should be
kept secret has been getting out by leaks or other kinds of disclo-
sures. This directive is an effort to improve our ability to enforce
these restrictions to some extent. We certainly do not to interfere
with the free flow of unclassified information to the public. But
there no, in our view, right of public access to classified informa-
tion, and that is what the directive is designed to deal with.

Mrs. Schroeder. I have no problems with your conclusions. It is
who classifies and how broad the classification is.

Congressman Sensenbrenner, do you have any further questions?

Mr. Sensenbrenner. I have no questions, thank you.

Mrs. Schroeder. Congressman Edwards, do you have any further
questions?

Mr. Edwards. I have one more question, thank you, Madam
Chairman.

You have some employees and contractors who do not have
access to SCI but they have signed a nondisclosure agreement. Are
they required to submit writings, and so forth, for preclearance?

Mr. Willard. Those people would not be required to do so unless
their contract or agency regulations required it.

Mr. Edwards. These are contractors or employees who have
signed agreements, but they have never had access to classified ma-
terial. They still have to submit their writings.

Mr. Willard. If they have signed agreements for access to SCI
that included provision for prepublication review, then they would
have to submit anything for review that fell under the agreement.
If they never had any access to classified information, not with-
standing signing an access agreement, then it is hard for me to see
how they would write anything that would have to be reviewed. By
and large, employees don't sign these agreements until they are ac-
tually going to obtain access to classified information.

Mr. Edwards. Probably under the Snepp decision, they would
have to get clearance.

Mr. Willard. In our view, the Snepp decision allows the govern-
ment to impose prepublication review requirements either by con-
tract or by regulation, but it has to be one or the other. Thus,
either the contract you sign has to specifically say prepublication
review is authorized or there have to be agency regulations that
clearly impose that requirement on employees as a condition of
their access to classified information.

With regard to the vast majority of employees with access to
classified information but not SCI, they would not be required to
submit to prepublication review.

Mr. Edwards. You are going to recommend that any employees
who have access to classified information sign these agreements; is
that correct?

Mr. Willard. We are talking about two kinds of agreements, Mr.
Chairman. One kind of agreement is a simple nondisclosure agree-
ment in which the employee promises not to disclose classified in-
formation in the future. Most agencies already have some form or
another of those agreements. Some of them call them secrecy odes,
some of them call them agreements. They are in various forms.
The President's directive tries to standardize that approach and
makes sure that the forms are legally enforceable and are as con-
sistent as possible.

But that is not a requirement of prepublication review. That pre-
publication review requirement is only required by this directive to
be included in secrecy agreements for employees with access to
SCI, which is a very small fraction o r Government employees who
have access to classified information generally.

Mr. Edwards. Thank you.

Mrs. Schroeder. Thank you.

Mr, Willard, thank you very much.

We will leave the record open in case counsel have written ques-
tions. In the interest of time, I think we have to move along.

Our next two witnesses will be appearing as a panel, and they
will be having the responsibility to implement these mandates that
are outlined in the directive.

First is Mr. Arch Ramsey, who is the Associate Director for Com-
pliance and Investigations at the Office of Personnel Management.
I think that recent events at the Department of Education's Office
of Civil Rights have highlighted some of OPM's related responsibil-
ities in implementing the Federal personnel security program.

We look forward to hearing from Mr. Ramsey on this issue, as
well as from our second panelist, Mr. Garfinkel, the Director of the
Information Security Oversight Office at the General Services Ad-
ministration. We welcome both of you.

Again, we will put your statements in the record as they are
written. If you want to just summarize or whatever, we are glad to
have you and we will proceed however you would like.

TESTIMONY OF ARCH S. RAMSEY, ASSOCIATE DIRECTOR FOR

COMPLIANCE AND INVESTIGATIONS, OFFICE OF PERSONNEL

MANAGEMENT; AND STEVEN GARFINKEL, DIRECTOR, INFOR-
MATION SECURITY OVERSIGHT OFFICE, GENERAL SERVICES

ADMINISTRATION

Mr. Ramsey. Mrs. Schroeder, I am Arch Ramsey. We have
agreed that I will go first.

In the interest of time, I will dispense with a summary of our
written statement and simply it be submitted for the record. I am
ready to proceed with any questions the committee may have.

Mrs. Schroeder. Thank you, Mr. Ramsey.

[The statement of Mr. Ramsey follows:]

Statement op Arch S. Ramsey, Associate Director, Compliance and
Investigations Group, U.S. Office of Personnel Management

Madam Chairwoman, Mr. Chairman, I appreciate the opportunity to appear on
behalf of the United States Office of Personnel Management (OPM) concerning the
President's directive of March 11, 1983, on safeguarding national security informa-
tion.

As you know, OPM and all other agencies with employees having access to classi-
fied information are directed to revise their existing regulations under the directive.
The revised regulations will require employees to submit to polygraph examinations
in connection with investigations of unauthorized disclosure of classified informa-
tion. I trust that it is well understood that the focus of the President’s directive is
on unauthorized disclosure of information that is lawfully classified for national se-
curity purposes.

OPM’s guidance on use of the polygraph is a legacy from its predecessor, the
United States Civil Service Commission, The origin of this guidance can be traced to
a report issued in 1935 by the House Committee on Government Operations entitled
“Use of Polygraphs as ‘Lie Detectors' by the Federal Government," The report in-
cluded a recommendation that the President establish an interagency committee to
study use of the polygraph by Executive Branch agencies. A study was duly made
under the direction of John W. Macy, Jr., who was then the Chairman of the United
States Civil Service Commission. Based on this study, instructions concerning the
use of polygraphs for employment screening and personnel investigations of appli-
cants for, and appointees to, comnetitive service positions were issued as a Federal
Personnel Manual letter on October 25, 1968. These instructions were incorporated
into the Federal Personnel Manual at Chapter 736, Appendix D. They were last re-
vised on July 9, 1973.

The instructions allow an Executive agency with a “highly sensitive intelligence
or counter-intelligence mission directly affecting the national security" to use the
polygraph for screening and investigation of competitive service applicants and ap-
pointees, However, the agency must first obtain the approval of OPM by submitting
a statement of its mission and a copy of its current regulations and directives gov-
erning polygraph use. The regulations and directives must meet certain criteria set
forth in the Federal Personnel Manual instructions. Approval is granted only for
periods of one year in duration.

The President's directive is based on the recommendations of an inter-departmen-
tal group under the direction of the Attorney General. The group was composed of
representatives of the Departments of State, Treasury, Defense, Energy, and the Di-
rector of Central Intelligence. The directive calls upon the Director of OPM and the
Attorney General to consult in establishing an interdepartmental group to study
personnel security programs in the Executive Branch.

As part of its responsibility under the directive, OPM representatives will meet
with the inter-departmental group to carry out this part of the directive. Any fur-
ther developments concerning OPM’s role in this process will await consultation
with the representatives of the appropriate Executive Branch agencies. We believe

this will be a constructive opportunity to review our various programs and to see if
any improvements or adjustments are needed.

I would also like to take this opportunity to address a complaint about the
manner in which the President’s directive was issued. One of the employee unions
has suggested that it should have been consulted before the directive was issued.
The statutory scheme governing labor-management relations in the Executive
Branch does provide for consultation with employee unions when an agency issues
Government-wide rules or regulations that result in a substantive change in any
condition of employment. However, it is plain that this provision does not apply to
directives or issuances by the President. Furthermore, when the rule or regulation
involves national security matters, the statutory scheme clearly excludes collective
bargaining or union consultation. Needless to say, if the implementation of any of
the eventual recommendations of the forthcoming interdepartmental study groups
requires the promulgation of regulations through the formal implementing process,
then public scrutiny and comment and appropriate union consultation will take
place.

Thank you again for this opportunity to appear on behalf of OPM. I would be
happy at this time to answer any questions you may have concerning OPM’s role in
connection with the President’s directive.

Mrs. Schroeder. Mr. Garfinkel, you may proceed.

Mr. Garfinkel. Good morning, Madam Chairwoman, Mr. Chair-
man and others.

I also will dispense with reading my statement. I would just reit-
erate something that Eichard Willard said. The Information Secu-
rity Oversight Office is responsible for overseeing the information
security or classification program throughout the executive branch.
Our particular involvement with respect to the directive issued by
the President on March 11 deals with the preparation of the stand-
ardized nondisclosure agreements that employees would be expect-
ed to sign.

I also am available to answer questions.

Mrs. Schroeder, Thank you. We appreciate that.

[The statement of Mr. Garfinkel follows:]

Statement of Steven Garfinkel, Director, Information Security Oversight
Office, U.S. General Services Administration

Madam Chairwoman, Mr. Chairman, and members of the subcommittees, I appre-
ciate the opportunity to appear before you today to explain the role of the Informa-
tion Security Oversight Office in implementing the National Security Decision Di-
rective issued by the President on March 11, 1983, entitled, “Safeguarding National
Security Information.” Before I address this particular matter, however, I feel it is
worthwhile to explain briefly the history and functions of the Information Security
Oversight Office, or ISOO.

President Carter established the ISOO in 1978, through the issuance of Executive
Order 12065, and President Reagan retained it in Executive Order 12356, issued last
year. ISOO is responsible for overseeing the information security program of all ex-
ecutive branch agencies that create or handle national security information and for
reporting annually to the President on the status of the program. ISOO is an admin-
istrative component of the General Services Administration, but receives its policy
direction through the National Security Council. The Administrator of General
Services appoints the ISOO Director, who must be approved by the President. The
ISOO staff is small, numbering under fifteen persons. ISOO’s purpose is, through
effective oversight, to achieve improved protection for national security information
while promoting public access to that information that does not meet the criteria of
the Order for classification.

ISOO seeks to accomplish its mission by conducting on-site compliance inspections
of the approximately 65 executive branch departments, agencies or independent of-
fices that create or handle national security information: by gathering and analyz-
ing statistical data related to agency implementation of the Order; by developing
and sponsoring information security education and training programs and materi-
als; by issuing implementing directives and other guidance; by considering and
taking action on suggestions and complaints from persons within or outside the Gov-

ernment with respect to any aspect of the administration of the program; by con-
ducting special studies related to the function and improvement of the information
security program; and by maintaining liaison on an informal basis with each agency
that creates or handles classified information. As recently added in E.O, 12356, one
of ISOO’s specific tasks is the development and issuance of standardized forms in
the information security area. The National Security Decision Directive draws upon
this function.

Among its provisions, the Directive requires that all persons having access to clas-
sified information, including Sensitive Compartmented Information (SCI), enter into
a nondisclosure agreement with the United States as a condition of receiving access.
It further directs me to develop standardized forms that meet enforceable standards
for the nondisclosure agreements, including the requirement that the agreement for
access to SCI contain a prepublication review provision. To fulfill this responsibility,
I have been chairing an interagency working group that is assisting me in develop-
ing draft forms to submit to the Attorney General for a review of their legality and
enforceability. We have based our work on existing forms, approved by the Justice
Department, that currently perform a similar function for particular agencies. To
date we have made significant progress in drafting these forms, and I anticipate
submitting them to the Attorney General for review very shortly. Upon receiving
the concurrence of the Justice Department, ISOO will commence the printing and
distribution of these forms through regular channels. Our goal is to have them oper-
ational sometime this summer.

Mrs. Schroeder. Mr. Garfinkel, the first question we have is how
many employees Government-wide have access to classified infor-
mation?

Mr. Garfinkel. I have been asked that question about 200 times,
and I haven't given a satisfactory answer yet.

No one knows how many employees actually have access to clas-
sified information.

Mrs. Schroeder. Don't you find that shocking to begin with?

Mr. Garfinkel. I think that the problem of coming up with an
exact number has been considered not cost effective. It would take
a tremendous effort. We know that the number is very large. Each
agency is responsible for its own personnel security program.

The Information Security Oversight Office [ISOO] is concerned
with what is known as the information security program, which is
obviously closely related to the personnel security program. One of
the differences though, is that there is no comparable centralized
oversight body that governs the personnel security program. That
is left to each agency head, and there has been no effort, to my
knowledge, of late to try to formulate what the exact number is.

We certainly know that the numbers are in the hundreds of
thousands, at least, for employees. When you add contractors, you
expand that number considerably.

Mrs. Schroeder. Does anybody rate which agencies do a better
job than other agencies on monitoring this? In other words, I see us
getting into this position because, like so many things, someone
says they are not enforcing the law that is on the books now so we
will make a bigger and better law that may be even more difficult
and complex and expensive to enforce. Are you telling me that
there is no one now who looks at all agencies to see how well they
are doing?

Mr. Garfinkel. We certainly look at all agencies to see how well
they are doing in their information security program. As far as
trying to determine who is doing best in their personnel security
program, you can really divide the Government between one
agency and all of the rest. The Department of Defense with its con-
tractors is so large in terms of the numbers of persons and contrac-

tors who are involved in classified matters, that they really stand
alone, both in terms of controlling their numbers and in terms of
the problems that would be involved to gather any meaningful sta-
tistics about those numbers.

So I think that when you are talking about, “Let's get a
number,” you would first be saying, “Let the DOD come up with a
number,” and that would be a mammoth task.

Mrs. Schroeder. What we have heard is the reason we have to
have this new system is because things aren't going well, the laws
aren't being enforced that are on the books now. So my question is
who do we look to? Who is messed up? Who is the one who is let-
ting all these leaks occur in the Federal Government? Who do we
point to?

Mr. Garfinkel. Obviously, the gross numbers of persons who
have access to classified material are not all involved in leaking
classified material. The numbers of leaks are infinitesimal com-
pared to the number of persons who actually have access to classi-
fied information.

Mrs. Schroeder. So you do feel there is this big a problem as
they are telling us?

Mr. Garfinkel. I think that we have to look at it as a qualitative
problem and not a quantitative problem. There is some effort afoot
in terms of the President's directive to look at the personnel securi-
ty system to see if that system can be improved to help the matter
of leaks. But I don't believe anyone suspects that simply reforming
the personnel security system is, by itself, going to accomplish all
that needs to be done to control leaks. That is merely one aspect of
the thing, and perhaps not as important an aspect as the idea of
trying to control those qualitative leaks, that mind set that a
person may have to leak information.

Mrs. Schroeder. We haven't seen it, but have you seen all of the
very serious leaks that have transpired?

Mr. Garfinkel. I certainly haven't seen all of them. I have been
made aware of several.

Mrs. Schroeder. But you are in charge of overseeing all of this.

Mr. Garfinkel. Our responsibility with respect to leaks does not
go to investigating individuals involved in leaks and punishing
them. We are not an investigative body.

Our role with respect to leaks is to determine if the leak is a
product of some systemic problem. Is the information security
system in place at fault for the leaks and if, in fact, it is at fault,
how can we change it? To that extent, we are involved in this di-
rective in looking at some of the systems that are involved.

However, as you may very well be aware, most leaks are not sys-
temic problems, they are individual problems. Individuals decide
that they are going to release information, and the system in place
has nothing to do whatsoever with whether or not they do or they
don't — at least the information security system.

Mrs. Schroeder. I think that is a very important statement that
you just made.

How many employees work at agencies — roughly, because I real-
ize you don't have it down to the final number. How many employ-
ees work at agencies where they have access to classified informa-
tion but they don't use polygraphs?

Mr. Garfinkel. Again, the numbers there would be in the hun-
dreds of thousands or millions, as far as use of polygraphs right
now is concerned. Again, those are statistics that our office does
not even attempt to

Mrs. Schroeder. I guess I am looking to you for some systemic
direction, because if we are being told that this is a systemic solu-
tion to put everybody under polygraph — do you have any evidence
that if you work in agencies where they are giving polygraphs
there is less leaking than if you don’t?

Mr. Garfinkel. Our office does not collect any statistics about
the use of polygraphs. Perhaps Mr. Ramsey has some information
on that, or others who may testify here.

Mrs. Schroeder. Do you have anything that could help us with
that?

Mr. Ramsey. Mrs. Schroeder, going back to an earlier point, the
Office of Personnel Management and its predecessor, the Civil
Service Commission, do have an oversight responsibility under Ex-
ecutive Order 10450 for reviewing agencies’ personnel security pro-
grams. The Executive order makes it clear that the agency head
has the basic responsibility for administering the personnel securi-
ty program within his agency.

In 1965, a House import was issued regarding the use of poly-
graph in the Federal Government. One of the recommendations of
that report was that an interdepartmental committee should be set
up to establish standards for that use. Standards were developed
and were published. They are presently published in the Federal
Personnel Manual. The uses at the present time are limited to
agencies that are engaged in intelligence and counter-intelligence
kinds of operations. They came to the Civil Service Commission
and now to the OPM to request authority to use the polygraph in
certain very limited situations. The authorizations to use polygraph
in those situations is granted on a year-by-year basis.

I should make one point clear, that the OPM’s authority is basi-
cally limited to the competitive service and not to the accepted
service or to the military services.

Mrs. Schroeder. Thank you.

Congressman Sensenbrenner, do you have any questions?

Mr. Sensenbrenner. No questions, Madam Chairwoman.

Mrs. Schroeder. Congressman Edwards, do you have some ques-
tions?

Mr. Edwards, Thank you, Madam Chairwoman,

The President’s directive, Mr. Garfinkel, says that leaks of unau-
thorized disclosure of classified information shall continue to be re-
ported to the Justice Department and to your office. Do you have
statistics on the number of such reports that you have received
over the years?

Mr. Garfinkel. Regrettably, I don’t think the agencies have re-
ported as many leaks as have occurred to our office. We have had
probably a half dozen reported situations in the last couple of
years.

There is one problem that comes to mind in terms of reporting
leaks quickly to our office. Frequently, agencies are very concerned
about not disseminating information about the existence of a leak

until such time as they have had an opportunity to do some sort of
internal investigation.

Again, our role is not to investigate the individual concerned or
to try to punish any individual; our concern is simply to see if the
leak resulted from some failure in the information security system.

Mr. Edwards. Thank you, Mr. Garfinkel.

I think you can understand the problem that this committee has.
We asked Mr. Willard to tell us about the avalanche, about the epi-
demic of leaks that is causing this very radical change in proce-
dures — I think you both would agree that this is a big change in
procedures for Federal employees, it is a mammoth change — and
Mr. Willard says that we got them, but we will have to go into ex-
ecutive session, and we told the Intelligence Committee about
them.

You, sir, Mr. Garfinkel, say that you are under direction to re-
ceive reports of these leaks by Presidential order and, yet, you have
maybe a half a dozen or so. You, of course, can't tell us about them
except in executive session also.

So where do the American people come out on this or the hun-
dreds of thousands of Federal employees? Everything is going to be
secret, insofar as the people are concerned and the Federal employ-
ees and, yet, we are going to be privy apparently to some classified
information that we can't disclose, of course. What is that going to
do?

I will ask you, Mr. Ramsey, what is that going to do to the
morale of the Federal office force?

Mr. Ramsey. At the present time, Mr. Edwards, there are certain
conduct regulations which apply to Federal employees which cover
their use of information which is not available to the general
public and require that, if they are going to use that information in
any writing or public disclosures, particularly for private gain, they
have to gain the approval of their agency head before they can do
so.

Essentially, what the directive applies to is classified informa-
tion. It, of course, applies to many people in the Defense Depart-
ment who handle classified information, and in many other agen-
cies, the number of classified information is relatively small. I
would not believe that the impact on employee morale would be
that great.

Mr. Edwards. But thousands of Government employees are
facing polygraph tests if this order is implemented and the regula-
tions are issues; isn't that correct?

Mr. Ramsey, If there are allegations that there has been a disclo-
sure of classified information.

Mr. Edwards. Right. And Mr. Willard's testimony is to the effect
that it is a very serious problem, and we must read into that that
there are many, many leaks, contrary to Mr. Garfinkel's testimony.

Mr, Ramsey. We have no particular information on the number
of leaks since we are not involved in that aspect of that matter.

Mr. Edwards. What is a Government employee going to think, a
Foreign Service officer or somebody, when he reads in the paper
yesterday that the Pentagon's Health Director says that the poly-
graph misclassifies innocent people as liars and says that they are
reliable 62 to 72 percent of the time?

Mr. Ramsey. We have within OPM no independent expertise on
the polygraph or the accuracy of the polygraph. We do not use it at
the present time. We would defer to those Federal agencies which
have greater expertise in that area. I understand that the National
Security Agency did testify before this committee earlier.

Mr. Sensenbrenner. Would the gentleman yield?

Mr. Edwards. Sure, I yield.

Mr. Sensenbrenner. Perhaps the gentleman from California
does not watch F. Lee Bailey’s show as I do. The gentleman from
California might be interested in knowing that the President’s
barber appeared on F. Lee Bailey’s show and underwent a poly-
graph examination, and F. Lee Bailey pronounced that he was tell-
ing the truth when he said the President doesn’t use hair dye.

Mr. Edwards. Maybe I was watching “Love Boat” that night.

Mr. Ramsey, what role did OPM play in the recent action by the
Department of Education to upgrade the classification of its civil
rights attorneys and investigators to critical sensitive?

Mr. Ramsey. I would be happy to talk about that, Mr. Edwards.

This is a matter aside and apart from the national security direc-
tive. The Office of Personnel Management does have the responsi-
bility under the Executive order to review and appraise the person-
nel security programs of agencies with employees in the competi-
tive service. We conduct those appraisals on a regular and routine
manner.

During the course of those appraisals, we make recommendations
to the agencies about how those programs can be improved. For ex-
ample, if agencies have failed to include positions in a particular
designation of sensitivity that should have been included in that
category, we make a recommendation that they be so included.

I believe it was in 1980 that the then Department of Education,
which was still being serviced on personnel security matters by
HEW and HHS came to OPM and asked their advice in establish-
ing their own personnel security program. The then Chairman of
the Civil Service Commission, Alan Campbell, agreed in a letter to
the Secretary that we would provide such service. We did so. We
made several recommendations about inclusion of positions in the
various sensitive categories.

At one point, the Director of Security for the agency sent a letter
to the Office of Personnel Management and asked for our com-
ments on whether or not three particular positions met the criteria
for inclusion in critical sensitive. I think those were equal employ-
ment opportunity adviser, advisory equal employment opportunity
adviser and attorney adviser. The Director of our investigations
group responded that he believed that the positions did meet the
criteria for inclusion in critical sensitive. That was the advice fur-
nished to the agency.

Mr. Edwards. What is the difference between critical sensitive
and classified? Are these 17 people working in civil rights — they
are critical sensitive — does that mean they are going to have access
to classified material?

Mr. Ramsey. In 1965, when an interdepartmental group reviewed
the personnel security program, the designation of critical sensitive
was expanded to include not only positions which had access to
classified information, but it also included positions which were

policymaking, policy-determining, were investigative in nature, had
fiduciary responsibilities, public contact responsibilities or other re-
sponsibilities involving public trust.

Mr. Edwards. Thank you.

Mrs. Schroeder. I have a few more questions, Mr. Ramsey on
this area of critical sensitive.

Under Executive Order 10450, they talk about sensitive positions
being defined by their impact on national security. I guess the
problem is how do you get from national security to these critical
sensitive areas? Aren't you expanding it way beyond foreign
policy?

Mr. Ramsey. The definition of national security which is in the
Federal Personnel Manual at the present time and which is used in
this context, talks about the recruiting and employment of people
whose employment would be compatible with protecting the mili-
tary, industrial or commercial interests of the United States. Those
decisions were made several years ago, Mrs. Schroeder, and have
been in effect for

Mrs. Schroeder. If they are not in the Executive Order — didn't
OPM expand the Executive order? Where did it come from?

Mr. Ramsey. The expansion took place as a result of the delibera-
tions of an interdepartmental group. This was not done by the Civil
Service Commission on its own initiative at that point?

Mrs. Schroeder. Who was in that interdepartmental group?

Mr. Ramsey. I would be glad to furnish that for the record, Mrs.
Schroeder. I know there representatives of several agencies, and I
believe one of the members at that time was the then Chairman of
the Civil Service Commission, John Macy.

Mrs. Schroeder. I think the thing that disturbs us is that all we
can find in the executive order which clearly talks about national
security and this whole critical sensitive thing seems to be some-
thing that has been grafted onto that executive order and it really
has expanded to the list of policymaking and policy-determining
positions regardless of the agency; is that right?

Mr. Ramsey. That is correct.

Mrs. Schroeder. And all positions with investigatory duties and
all positions with public contact or duties demanding the highest
degree of public trust; is that right?

Mr, Ramsey. Those are included in the expanded criteria.

I should make it clear that the agency head does have the re-
sponsibility for administering the program within his agency, and
he or she makes the final determination about the inclusion of par-
ticular positions.

Mrs. Schroeder. And that agency head, though, is a political ap-
pointee, a Schedule C.

Mr. Ramsey. In most cases, a presidential appointee, yes.

Mrs. Schroeder. So, if they foulup, you can let them go and
OPM isn't going to protect them.

I guess my concern is you have taken an executive order dealing
with national security and then grafted this in. So we would really
like to know who was on that group that decided to do it and how
they got to the point where all these other people should be labeled
critical sensitive. It sounds like critical sensitive for political sur-
vival and not national survival, and that worries me.

Mr. Ramsey. We will be glad to provide that information for the
record.

[See, Willard Report. Appendix 2, at 132.]

Mr. Ramsey. I should point out that we have thousands of em-
ployees in the Federal Government who undergo background inves-
tigations because they are going to be handling sensitive matters.
Those investigations are updated on a 5-year basis. These back-
ground investigations are inquiries, personal inquiries, into the pre-
vious employment, education and reputation of these individuals.

I am one of those employees who have undergone such an inves-
tigation, and I think it is perhaps more threatening in appearance
than it really is. It is simply the establishment — a determination
by the Federal Government that the people who are going to be
put in those positions are the kinds of people who meet the stand-
ards which have been established for Federal employment.

Mrs. Schroeder. The gentleman from California.

Mr. Edwards. Are you saying, Mr. Ramsey, that these 17-odd
civil rights attorneys and investigators were not investigated?
Didn't they give you a resume and recommendations, and so forth,
before they were hired? I am sure the Office of Education just
doesn’t hire people right off of the street.

Mr. Ramsey. I can’t tell you what happened specifically with
those people, Mr. Edwards.

Ordinarily, when employees come into the Federal service, if
they are not going into sensitive positions, we conduct what we call
a national agency check and inquiry, post-employment. That is we
check the police records and the like to see whether or not there is
anything in the background that would present a suitability prob-
lem.

I would assume that, for most of those people, if they came into
the Federal Government in non-sensitive jobs, that kind of prelimi-
nary investigation was created.

Of course, if a person is in a non-sensitive job in the Federal Gov-
ernment, and then they move to a sensitive position, a critical sen-
sitive position, then there is a requirement that a background in-
vestigation, a personal investigation, be conducted.

Mr. Edwards. Thank you.

I guess the key question is why would OPM recommend that 17
or 18 civil rights investigators and attorneys be reinvestigated and
upgraded, insofar as sensitive information, when those people are
supposed to be critical here and there of the Government and of
the hiring practices and the civil rights enforcement of education,
civil rights laws, and so forth?

Were you a part of the decisionmaking in that recommendation?

Mr. Ramsey. The particular decision was made through corre-
spondence between the security officer for Education and the head
of our Personnel Investigations Division. I was not a part of it.

I would say, though, that in reviewing that correspondence, Mr.
Edwards, the same question had been raised with me as to whether
or not these positions met the criteria for critical sensitive, that I
would have agreed with the opinion that was rendered by the Di-
rector of our Investigations Division.

Mr. Edwards. You mean they have national security informa-
tion?

Mr. Ramsey. No, sir. As I told you earlier, the criteria includes
such things as policymaking, policy-determining, fiduciary, investi-
gative, public contact, other matters relating to public trust, and a
review of the job descriptions for those positions indicates that
those jobs do deal with those aspects of the Federal Government’s
operation.

Mr. Edwards. Then that would include in the Department of
Education hundreds and hundreds of people in addition to the civil
rights people.

Mr. Ramsey. I don’t know what determinations have been made
by the Department of Education finally. They did issue their direc-
tive governing their personnel security program in December 1982,
and I am not aware at this time of what final decisions they made
about the designation of positions as critical sensitive.

Mr. Edwards. Do they only issue the order on civil rights people?

Mr. Ramsey, They only asked for our particular opinion on those
three items. We did have people working with the Department in
helping set up their personnel security program, and they may
have, during the course of those discussions rendered advice on
other positions. The only ones that I have specific information on
are the three that they asked for our comments on.

Mr. Edwards. You don’t think it is intimidating?

Mr. Ramsey. No, sir, I don’t find it intimidating. I have been sub-
jected to several background investigations. Perhaps I don’t find it
intimidating because I know the process and know what it in-
volves.

But as I say, this is a fairly routine activity. We conduct security
appraisals of Federal agencies and we make recommendations
about improvement in those programs. We make recommendations
about the designation of positions in those agencies.

We would be glad to provide to the committee a list of the agen-
cies in which we have conducted such security appraisals.

Mr. Edwards. What will the security appraisal consist of with
these civil rights investigators and attorneys? Who will make the
investigation and what will the procedure be? Will they go to their
neighbors? Will they check past employment, and so forth?

Mr. Ramsey. The Department of Education would ask the Office
of Personnel Mangement to conduct those investigations. Investiga-
tors would be going out to various locations to check on previous
employment, previous or claimed education, and also would be
talking to people in neighborhoods where they lived to check on
their reputations.

Mr. Edwards, These are people who have been working for the
office a year or two or three or four or perhaps more?

Mr. Ramsey. That is right.

Mr. Edwards. All of a sudden, investigators are going to be
brought into their neighborhoods asking their neighborhoods about
their habits, their loyalty, and so forth; is that correct?

Mr. Ramsey. That is right.

That is not unusual, Mr. Edwards. As I pointed out, when a
person enters the Federal service, if they enter a nonsensitive posi-
tion, a national agency check and inquiry is conducted. If that
person at some later point in their employment either moves into a
position which is critical sensitive or which is subsequently desig-

nated as critical sensitive, then an investigation would be conduct-
ed at a later point?

Mr. Edwards. Are you going to give him a raise, too?

Mr. Ramsey. That is not in my jurisdiction.

Mrs. Schroeder. So you don't know if there is anyone else at the
Office of Education who has been classified as critical sensitive?
You are not into at OPM deciding whether everybod)^ in that defi-
nition must be, it is that they can be if the director wants them to
be; is that right?

Mr. Ramsey. When we do our security appraisal, we try to make
as complete a review of the positions as we can and come up with
the recommendations regarding ail of the positions which we think
should be included in critical sensitive.

Mrs. Schroeder. But it still is the agency head having the deter-
mination —

Mr. Ramsey. It still is the agency head's final determination.

Mrs. Schroeder. And if they want to select the Office of Civil
Rights and make them critical sensitive but not the others, that is
within their authority?

Mr. Ramsey. Yes, ma'am.

Mrs. Schroeder. Let me ask you about section 6 which says you
will be studying this. Is that going to be going on?

Mr. Ramsey. You are talking about the section of the security di-
rective that says that the Attorney General, in consultation with
OPM?

Mrs. Schroeder. Yes.

Mr. Ramsey. Yes, we will be part of that study. We have not had
any meetings on that matter yet in which OPM has been involved,
so I have no information on that point to provide.

Mrs. Schroeder. Do you know when the meetings will start?

Mr. Ramsey. No, ma'am, I do not.

Mrs. Schroeder. Congressman Gekas, do you have any ques-
tions?

Mr. Gekas. Not at the moment, thank you.

Mrs. Schroeder. Congressman Sensenbrenner?

Mr. Sensenbrenner. No.

Mrs. Schroeder. Congressman Edwards?

Mr. Edwards. No, thank you, Madam Chairwoman.

Mrs, Schroeder. Again, we will leave the record open for counsel
because of the time constraints this morning.

I want to thank both Mr. Ramsey and Mr. Garfinkel for being
here this morning. We appreciate your time.

The next witness we have this morning is Mr. Charles Wilson,
Director of the Office of Public Affairs and Chairman of the Publi-
cations Review Board at the Central Intelligence Agency.

Accompanying Mr. Wilson is Mr. Ernest Mayerfeld, Deputy Gen-
eral Counsel at CIA.

Gentlemen, we welcome you. We are glad to have you here this
morning. Again, we will put your entire testimony in the record
and, if you want to summarize, fine. If you want to just proceed,
fine. We will turn it over to you at your discretion.

TESTIMONY OF CHARLES WILSON, DIRECTOR OF THE OFFICE OF

PUBLIC AFFAIRS AND CHAIRMAN OF THE PUBLICATIONS

REVIEW BOARD, CENTRAL INTELLIGENCE AGENCY, ACCOMPA-
NIED BY ERNEST MAYERFELD, DEPUTY GENERAL COUNSEL,

CENTRAL INTELLIGENCE AGENCY

Mr. Wilson. In the interest of time, we agree with your advice.

I would, however, like to mention that attached to our statement
are several important documents which I commend to your atten-
tion which are basic to the reason that we are here today. One is a
copy of CIA's secrecy agreement from which the prepublication
review process derives; secondly, a copy of the internal CIA regula-
tion which governs prepublication review; and third of all, a copy
of CIA's guidelines which it makes available to both current and
former employees to assist them in the prepublication process.

Mrs. Schroeder. Without objection, we will put those into the
record.

[The statement of Mr. Wilson with attachments follow:]

Statement of Mr. Charles E. Wilson, Chairman, Publications Review Board,
Central Intelligence Agency

Good morning, Chairman Edwards, Chairwoman Schroeder and members of the
Subcommittees. My name is Charles Wilson. I am Chairman of the Central Intelli-
gence Agency’s Publication Review Board. I am pleased to appear before you here
today to testify on the Central Intelligence Agency’s experience in administering its
prepublication review process. With me is Mr. Ernest Mayerfeld, the Agency’s
Deputy General Counsel and Legal Advisor to the Publications Review Board.

My testimony today will be confined to the period after 1977 when the system cur-
rently in place was first established.

The case of Snepp vs United States. 447 U.S. 507 (1979), is, of course, the decision
in which the Supreme Court validated the Agency’s prepublication review process.
In this case the Court held that the secrecy agreement which requires the submis-
sion of writings for prepublication review was enforceable and does not infringe on
First Amendment rights. The Agency recognizes the significance of the role which
has been assigned to it in this process and takes very seriously its responsibilities
not only to safeguard the classified information but also to protect an author’s First
Amendment rights. The Agency withholds permission to publish only that material
which is classified.

Since its establishment in 1947, the Central Intelligence Agency has required its
employees, as a condition of employment, to enter into a Secrecy Agreement with
the Agency. A copy of that Agreement is appended to the printed copies of my state-
ment (Appendix A). As the prepublication review process flows from the Secrecy
Agreement, let me begin with that Agreement.

The Agreement is a legal instrument in which the two parties to the employment
relationship, the Agency and the employee, set down their rights, duties and expec-
tations. The agreement implements the statutory responsibility of the Director of
Central Intelligence to protect intelligence sources and methods from unauthorized
disclosure. 50 U.S.C.A. § 403(d)(3).

The Agreement documents the special relationship of trust between the employee
and the Agency. In the Snepp decision the Supreme Court characterized this trust
as a fiduciary relationship. In that case, the Court held that such a relationship is
created when an individual enters onto duty with the Agency and is given access to
information which constitutes some of the most sensitive secrets of our nation.

In the Secrecy Agreement, the employee makes a number of solemn prmises in
consideration of employment and being granted access to classified information. One
is a promise not to divulge classified information.

More important to our purposes today, though, is another promise: the promise to
submit to the Agency for prepublication review any writings on intelligence matters
the employee may prepare anytime thereafter for unofficial publication. This is
often called the “prepublication review” obligation. It is on this promise that the
Agency’s system of prepublication review is established.

Let me pause here and address for a moment what sort of information prepuulica-
tion review seeks to protect. That information is, of course, classified information.

Unfortunately, the term "classified information’’ is so bandied about these days that
often its seriousness is ignored. Thus, I think it’s important every so often to step
back and remind ourselves of exactly what sort of information classified information
is.

The current Executive Order on classification, E.O. 12356, and its predecessors, all
have had one thing in common in this area. Each has defined classified information
as that information which, if disclosed, will cause damage to the "national securi-
ty”. The "national security”, in turn, is defined as the "national defense” or the
"foreign relations” of the United States. In other words then, classified information
is that information which, if revealed, will do harm to our nation. I think that we
must keep this simple yet important concept in mind at all times when discussing
the prepublication review process.

Returning now to that process, in 1977, the Agency promulgated a regulation, HR
6-2 (Appendix B), which created the Publications Review Board and vested it with
the function of conducting prepublication review of manuscripts submitted by cur-
rent and former employees.

The Board is chaired by me in my capacity as Chief of Public Affairs. I have held
that position since January 1982 and for four years prior to that time I was Execu-
tive Secretary to the Board. On the Board sit six individuals, senior representatives
from each of the Agency’s four Directorates, with two representatives each from the
Directorate of Operations and the Directorate for Administration. In addition, the
Board has a Legal Advisor, currently the Agency’s Deputy General Counsel, Mr.
Ernest Mayerfeld. He attends Board meetings and works with the Board throughout
all stages of the prepublication review process, advising it as to the legality and pro-
priety of its decisions.

The actual review process is depicted on the chart entitled "Publications Review
Board— Review Process” (Appendix C). While you are referring to that chart, let me
take you briefly through the process.

It begins for former employees when they submit a manuscript to the Office of
General Counsel, which has been designated by HR 6-2 as spokesman for the
Agency in these matters. That office immediately forwards the submission to the
Board noting any time constraints under which the author may be operating. The
Board then establishes a review schedule consistent with any such constraints and
forwards copies of the submission to each of the components represented on the
Board. When they receive it, the components then disseminate it to those persons or
subcomponents having expertise in the subject matter involved. The submission is
then reviewed. If no classified information is found in the submission, the author is
immediately informed.

If a component notes any classified information, it so advises the Board. The
Board then meets to review these classification determinations and the Legal Advi-
sor examines them for legal sufficiency. Once the decision is made, the Office of
General Counsel immediately advises the author.

This is perhaps, a good point to address the issue of timeliness. In meeting its re-
sponsibilities under HR 6-2, the board recognizes that often time is of the essence in
the review process. Thus, it strives in all cases to complete its review in a timely
fashion. HR 6-2 and the relevant court cases in this area impose a 30-day time limit
for completion of reviews. This standard has been met in virtually all cases but a
very few. The length of a review obviously depends upon the length of the submis-
sion involved and the amount of classified information which is identified. In 1982,
the average review took 13 days. The Board always seeks to work with an author to
meet his publishing deadline. In fact, a number of reviews have been completed in a
matter of hours to accommodate authors writing for short deadlines.

There have been very few instances in which more than 30 days have elapsed
from submission of a book to clearance for final publication. Those rare cases occur
most often because of the revision process. An author will frequently choose to re-
write his material and indeed may add substantial new material, all of which must
also be reviewed.

Depending on the degree of the revision involved, the entire process can take
longer than 30 days. The Board, however, recognizes that any delay can be trouble-
some to authors and therefore seeks to work with them to minimize delay.

In 1977, the Board reviewed a total of 43 books and articles. This number has
risen steadily since that time as indicated by the Chart "Total Manuscripts by
Form” (Appendix D). Since its inception, the Board has reviewed a total of 836
manuscripts amounting to about 62,000 pages (Appendix E). Of these 836, 612 were
approved outright and 182 were approved with some required changes, most of these
quite minor. Eleven were withdrawn by their authors. Fourteen U0 current employ-
ees, 4 former) of the 836 were found to contain so much objectionable information

that when the information was deleted, the remaining material did not make sense
nor could it be rewritten to make sense. These were disapproved. Seventeen manu-
scripts are currently in the review process for a total of 836.

When classified information is identified in a manuscript, the court decisions in
this area indicate that the Board can require the deletion only of those words which
are necessary to protect the classified information. The Board adheres strictly to
this standard. In most cases, an author can rephrase the material in question so
that his message can be communicated without disclosing classified information. In
fact, the Board affirmatively seeks to work with an author in such cases so as to
accommodate his literary goals while, at the same time, ensuring that the final
product does not contain classified information.

An administrative appeal mechanism is built into the review process. This mecha-
nism enables authors to challenge decisions of the Board by appeal through the
Agency's Inspector General to the Deputy Director of Central Intelligence. A chart
depicting the appeal process is attached as Appendix F. Since 1977, there have been
some appeals. The Board’s initial decisions have been sustained in some but the
Board also has been overturned on appeal. I believe that the appeal process serves
as an additional force to ensure that the Board’s initial decisions are fair and
proper.

The policies which guide the Board are set forth in the leaflet “Agency Policies on
Prepublication Review Provisions of Secrecy Agreements” (Appendix G). This leaflet
is routinely made available to former employees. A paramount principle guiding the
Board since its creation has been one of evenhanded and fair treatment to all au-
thors, regardless of their expressed or implied friendliness or unfriendliness towards
the Agency. I must emphasize that as subsection (b)(4) of our regulation H.R. 6-2
states, the Board will never deny publication of material solely “because the subject
matter may be embarrassing to, or critical of, the Agency.” Now in its seventh year,
the Board has become a highly organized and efficient review mechanism. The ulti-
mate test of its efficacy has been its ability to work with authors to preserve their
rights of free expression while at the same time safeguarding the classified informa-
tion which has been entrusted to the Agency. Storage of review material is current-
ly undergoing automation. This will enable the review process to become even more
efficient in the years to come.

I will now be happy to answer, together with Mr. Mayerfeld, any questions you
may have.

APPENDIX A

SECRECY ACREEMENT

1. I, (print full name), hereby agree to accept as a prior condition of my

being employed by, or otherwise retained to perform services for, the Central Intelligence Agency, or for staff elements of
the Director of Central Intelligence (hereinafter collectively referret! to at the "Central Intelligence Agency"), the
obligations contained in this agreement.

2. I understand that in the course of my employment or other service with the Central Intelligence Agency I may be
given access to information which is classified in accordance with the standards set forth in Executive Order 12356 as
amended or superseded, or other applicable Executive Order, and other information which, if disclosed in an unauthorized
manner, would jeopardize intelligence activities of the United States Government. I accept that by being granted access to
such information I will be placed in a position of special confidence and trust and become obligated to protect the informa-
tion from unauthorized disclosure.

3. In consideration for being employed or otherwise retained to provide services to the Central Intelligence Agency, t
hereby agree that I will never disclose in any form or any manner any of the following categories of information or
materials, to any person not authorized by the Central Intelligence Agency to receive them:

a. information which is classified pursuant to Executive Order and which f have obtained during the course of my

employment or other service with the Central Intelligence Agency;

b. information, or materials which reveal information, classifiable pursuant to Executive Order and obtained by me

in the course of my employment or other service with the Central Intelligence Agency. .. — ^

4. I understand that the burden will be upon me to learn whether information or materials within my control are

considered by the Central Intelligence Agency to fit the descriptions set forth in paragraph 3, s*.nd whom the Agency has
authorized to receive it -

5. As a further condition of the special confidence and trust reposed in me by the Central Intelligence Agency, I
hereby agree to submit for review by the Central Intelligence Agency all information or materials including works of fiction
which contain any mention of intelligence data or activities, or contain data which may be based upon information
classified pursuant to Executive Order, which I contemplate disclosing publicly or which I have actually prepared for public
disclosure, either during my employment or other service with the Central Intelligence Agency or at any time thereafter,
prior to discussing it with or showing it to anyone who is not authorized to have access to it. I further agree that I will not
take any steps toward public disclosure until I have received written permission to do so from the Central Intelligence
Agency.

6. I understand that the purpose of the review described in paragraph 5 is to give the Central Intelligence Agency an

opportunity to determine whether the information or materials which I contemplate disclosing publicly contain any
information which I have agreed not to disclose. I further understand that the Agency will act upon the materials i submit
and make a response to me within a reasonable time. I further understand that if I dispute the Agency's initial classification
determinations -on the basis that the information in question 'derives from public sources, I may be called upon to
specifically identify such sources. My failure or refusal to do so may by itself result in denial of permission to publish or
otherwise disclose the information in dispute. ^ __ . •

7. I understand that all information or materials which I may acquire in the course of my employment or other service
with the Central Intelligence Agency which fit the descriptions set forth in paragraph 3 of this agreement are and wilt re-
main the property of the United States Government. I agree to surrender all materials reflecting such information which
may have come into my possession or for which I am responsible because of my employment or other service with the Cen-
tral Intelligence Agency, upon demand by an appropriate official of the Central Intelligence Agency, or upon the conclusion
of my employment or other service with the Central Intelligence Agency.

8. I agree to notify the Central Intelligence Agency immediately in the event that I am called upon by judicial or
congressional authorities to testify about, or provide, information which I have agreed herein not to disclose.

9. I understand that nothing contained in this agreement prohibits me from reporting intelligence activities which I
consider to be unlawful or improper directly to the Intelligence Oversight Board established by the President or to any
successor body which the President may establish. 1 recognize that there are also established procedures for bringing such
matters to the attention of the Agency’s Inspector Ceneral or to the Director of Central Intelligence. I further understand
that any information which I may report to the Intelligence Oversight Board continues to be subject to this agreement for all
other purposes and that such reporting does not constitute public disclosure or declassification of that information.

368

O4soure mytoui
catKxi

33-307 0—84 4

10. I understand that any breach of this agreement by me may result in the Centra! Intelligence Agency taking
administrative action against me, which can include temporary loss of pay or termination of my employment or other
service with the Central Intelligence Agency. I also understand that if I violate the terms of this agreement, the United
States Government may institute a civil proceeding to seek compensatory damages or other appropriate relief. Further, I
understand that the disclosure of information which I have agreed herein not to disclose can, in some circumstances,
constitute a criminal offense.

11. I understand that the United States Government may, prior to any unauthorized disclosure which is threatened by
me, choose to apply to any appropriate court for an order enforcing this agreement. Nothing in this agreement constitutes a
waiver on the part of the United States to institute a civil or criminal proceeding for any breach of this agreement by me.
Nothing in this agreement constitutes a waiver on my part of any possible defenses I may have In connection with either
civil or criminal proceedings which may be brought against me.

12. In addition to any other remedy to which the United States Government may become entitled, I hereby assign to
the United States Government all rights, title, and interest in any and ail royalties, remunerations, and emoluments that
have resulted or will result or may result from any divulgence, publication or revelation of information by me which is
carried out in breach of paragraph 5 of this agreement or which involves information prohibited from disclosure by the
terms of this agreement.

. 13. I understand and accept that, unless I am provided a written release from this agreement or any portion of it by the

Director of Central Intelligence or the Director’s representative, all the conditions and obligations accepted by me in this
agreement apply both during my employment or other service with the Central Intelligence Agency, and at all times
thereafter.

14. I understand that the purpose of this agreement is to implement the responsibilities of the Director of Central
Intelligence, particularly the responsibility to protect intelligence sources and methods, as specified in the National Security
Act of 1947, as amended.

15. I understand that nothing in this agreement limits or otherwise affects provisions of criminal or other laws
protecting classified or intelligence information, including provisions of the espionage laws {sections 793, 794 and 798 of
Title 18, United States Code) and provisions of the Intelligence Identities Protection Act of 1952 IP. L. 97-200; 50 U. S. C.,
421 ei seq).

16. Each of the numbered paragraphs and lettered subparagraphs of this agreement is severable. If a court should find
any of the paragraphs or subparagraphs of this agreement to be unenforceable. I understand that all remaining provisions
will continue in full force.

17. I make this agreement in good faith, and with no purpose of evasion.

Signature

Date

The execution of this agreement was witnessed by the undersigned, who accepted it on behalf of the Central Intelligence
Agency as a prior condition of the employment or other service of the person whose signature appears above.

WITNESS AND ACCEPTANCE:

Signature

Printed Name

Date

APPENDIX B

PUBLIC AFFAIRS HR 6-

2. NONOFFICIAL PUBLICATIONS AND ORAL PRESENTATIONS 1
EMPLOYEES AND FORMER EMPLOYEES

SYNOPSIS. This regulation reflects establishment of the Publications Review
Board and sets forth policy, responsibilities, and procedures that govern the
submission and review of nonofficial publications and oral presentations by
current and former employees.

a. GENERAL

(1) The National Security Act of 1947, as amended, and Executive Order 12333 require the
Director of Central Intelligence to protect intelligence sources and methods from
unauthorized disclosure. Executive Order 12356 requires protection of classified informa-
tion from unauthorized disclosure. Agency employees are required to sign a Secrecy
Agreement whereby they assume a contractual obligation to protect certain categories of
information from unauthorized disclosure. The fact that an employee or former
employee has- had access to information whose unauthorized disclosure can harm the
national security imposes special obligations upon these persons,

(2) Based on the above obligations and responsibilities, this regulation requires that all
Agency employees (as defined by HR 20-2) and former employees submit for prior
review by the CIA all materials (defined in paragraph b{2) below) intended for
nonofficial publication or oral presentation. This regulation also establishes standards for
approval by the Publications Review Board.

b. POLICY

. (1) The Publications Review Board (hereafter the Board) was established to facilitate the

review of nonofficial writings and oral presentations to determine whether or not they
contain information as defined in paragraphs b(3Xa) through (d) and b(5) below. The

► Board consists of the Chief, Public Affairs Division (Chairperson), and representatives
from the Directorate of Operations, the Directorate of Administration, the Directorate of

► Science and Technology, the Directorate of Intelligence, the Office of Security, and the

► cover unit. The Office of General Counsel provides a legal adviser. The Board will meet
as required at the call of the chairperson to ensure that the provisions of this regulation
are met.

(2) Agency employees and former employees under the terms of their Secrecy Agreements
must submit for review by the Board all writings and scripts or outlines of oral
presentations intended for nonofficial publication*, including works of fiction, which
make any mention of intelligence data or activities, or contain data which may be based

♦ upon information that is classified or classifiable pursuant to law or Executive order.

Submission to the Board will be made prior to disclosing such information to anyone who
is not authorized by the Agency to have access to it. The responsibility is upon the
employee or former employee to learn from the Agency whether the material intended
for publication fits the description set forth in this paragraph. No steps will be taken

« toward publication until written permission to do so is received from the Agency.

(3) For current employees, the Board may deny approval for nonofficial publication or oral
presentation of any information obtained during the course of employment with the CIA
which has not been placed in the public domain by the U.S. Government, and which is in
any of the following categories:

(a) That which is classified pursuant to law or Executive order.

* “Publication** means communicating information to one or more persons.

.Revised: 4 March 1983 (1550)

6-2c

PUULIC AFFAIRS

(b) That which is classifiable pursuant to law or Executive order but which, because of
operational circumstances or oversight, is not formally classified by designation and
marking.

(c) That which identifies any person or organization that presently has or formerly has
had a relationship with a United States foreign intelligence organization, which
relationship the U.S. Government has taken affirmative measures to conceal.

(d) That which reasonably could be expected to impair the employee’s performance of
duties, interfere with the authorized functions of the CIA, or could have an adverse
impact on the foreign relations or security of the United States.

(4) Approval will not be denied solely because the subject matter may be embarrassing to or
critical of the Agency.

(5) In the case of former employees, the Board will be governed in each case by the
provisions of a former employees Secrecy Agreement in applying the criteria in
paragraphs b(3Xa), (b), and (c) above.

(6) The Board will attempt to have the review and classification of manuscripts of writings
and oral presentations completed within 30 calendar days.

(7) Authors who are directed to delete material in accordance with this regulation are
required to submit their revisions to the Board for final approval.

(8) Authors may appeal the final classification decision approved by the Board to the Deputy
Director of Central Intelligence (DDCI) (see paragraph c{6) below).

(9) Approval for publication or oral presentation does not represent Agency endorsement or

verification of, or agreement with, the subject matter. Consistent with cover status,
authors are encouraged (current employees are required, unless waived by line authority)
to use the following disclaimer: “This material has been reviewed by the CIA to assist the
author in eliminating classified information, if any; however, that review neither
constitutes CIA authentication of material as factual nor implies CIA endorsement of the
authors views.” *

RESPONSIBILITIES AND PROCEDURES

(1) Present employees may submit writings and scripts or outlines of oral presentations to the
Board through the responsible Deputy Director or Head of Independent Office who may
determine that review by the Board is unnecessary and that public release is authorized
based on paragraph b(3) above. A Deputy Director or Head of Independent Office also
may approve publication with deletions and/or changes or disapprove publication based
on paragraph b'o) above. Employees may elect to make submissions directly to the
Chairperson of the Publications Review Board for determination of the necessity for
Board review.

(2) Former employees will stibmit writings and scripts or outlines of oral presentations to the
Office of General Counsel, which will forward them to the Board and subsequently
notify the former employee of the Board’s findings. The General Counsel or designee will
act as spokesperson for the Board in all communications with former employees.

(3) Should a present employee learn that a present or former employee is preparing a writing
or an oral presentation that may contain information requiring Agency approval for
public release, he or she is requested to advise the Board, which will be responsible for
reminding the individual of the obligation to submit the material for Agency review.

(4) The chairperson will ensurethat each member of the Board has reviewed one copy of the
submission and that appropriate individuals are designated to make a classification
determination and return it to the chairperson with comments. If the Board unanimously

►Revised: 4 March 1983 (1550)

PUBLIC AFFAIRS HR 6-2c(5)

decides that U is unobjectionable under the standards and criteria listed above, the
chairperson will notify the author through the appropriate channels. If any member of
the Board objects to publication or oral presentation, the matter will be resolved at a
Board meeting.

r (5) The chairperson is authorized unilaterally to represent the Board when time constraints
or other unusual circumstances make it impractical or impossible to convene or consult
L the Board.

(6) Authors who wish to appeal decisions should address such appeals in writing to the DDCI,
accompanied by the manuscript the author wishes the DDCI to consider and any
— ♦ supporting materials. Appeals are to be submitted through the Inspector General or, in

the case of former employees, to the General Counsel, who will forward them to the
Inspector General. The Inspector General will review the data provided by both the
author and the Board and will forward the material and his recommendation to the
— . DDCI or designee, who then will issue a final determination. Every effort will be made to

complete the appeal process within a 30-calendar-day period.

•Revised: 4 March 1983 (1550)

4 . 1 - 4.2

APPENDIX C

PUBLICATIONS REVIEW BOARD
Review Process

PRB

COORDINATION
Operations
Cover Unit
Science & Technology
Administration
Security

Either 1 or 2
Either 3 or 4

APPENDIX D

NUMBER OF PUBLICATIONS REVIEW BOARD SUBMISSIONS BY FORM

PUB FORM

I BY EAR

1 o

8 0

TDTflL

ARTICLE

£8

157

123

501

BOOK

£9

££

£2

146

BEMKREVIEW

£6

CHARTER

£0

_ETR TO ED

OTHER

OUTLINE

£1

SCRIPT

■-*

SPEECH

£3

TOTAL

143

193

£12

•:< I

836

100

TOTAL PAGES REVIEWED BY YEAR

YEAR

TOTAL PAGES

5340

5725

10176

13705

10232

13227

3837

TOTAL

62242

APPENDIX E

101

APPENDIX F

PUBLICATIONS REVIEW BOARD
Appeal Process

102

APPENDIX G

AGENCY POLICIES ON PREPUBLICATION REVIEW
PROVISIONS OF SECRECY AGREEMENTS

A. POLICY ON ENFORCEMENT OF SECRECY AGREEMENTS RELATED TO PRE-
PUBLICATION REVIEW

1. Subsequent to the Supreme Court’s decision in U,S. v. Snepp, numerous inquiries have
been received concerning the Agency's policy on enforcement of its secrecy agreement. The
purpose of this notice is to set forth information concerning the Agency’s policy, for purposes of
assisting persons subject to secrecy agreements to comply in good faith with the requirements
of those agreements.

2. The purpose of the prior review requirement in the secrecy agreement is to determine
whether material contemplated for public disclosure contains classified ir classifiable informa-
tion and, if so, to give the Agency an opportunity to prevent the public disclosure of such infor-
mation. Prior review means that written materials are submitted to the Agency before being
circulated at each stage of their development to publishers, reviewers, or to the public. The rea-
son for this prior review requirement is to prevent comparison of the material which would
then reveal which Rems had been deleted by the Agency. For this reason, post-review of the
materials, i.e., after they have been submitted to the publishers, reviewers, etc., does not
comply with this policy. However, the Agency reserves the right to review any such material
for purposes of taking necessary protective action to mitigate damage caused by disclosure of
classified information it may contain, but such review and action shall be entirely without prej-
udice to the legal rights of the United States Government and the Agency under the secrecy
agreement.

3. Persons bound by the secrecy agreement should understand that the Agency cannot
determine unilaterally what action in court will be taken in the case of a breach of the agree-
ment. The Agency’s recommendations in this regard are subject to the decision of the Attorney
General. The Agency Office of General Counsel will be notified in ail cases when a known
breach occurs. The expressed or presumed attitude of a person toward the United States
Government or the Agency is not a factor in determining what recommendation may be made
by the Agency to the Department of Justice.

4. The authors of material submitted to the Agency are expected to cooperate with and
assist the review process. In particular, they may be called upon to identify any public sources
of information which, in the Agency’s judgment, appear to originate from classified sources
and to cite the source when their confirmation of the information would, in the eyes of the
Agency, cause damage. Failure or refusal to identify such public sources by itself may result in
refusal of authorization to publish the information in question.

5. Persons subject to a secrecy agreement are invited at any stage to discuss their plans for
disclosures covered by the agreement. The views of the Agency can only be given by an au-
thorized representative specifically designated for this purpose by the Director in regulation or
otherwise. No one should act in reliance on any position or views expressed by any person other
than such authorized Agency representative.

B. POLICY ON MATERIAL TO BE SUBMITTED FOR PREPUBLICATION REVIEW

1. It is not possible to anticipate each and every question that may arise. It is the policy of
the Agency to respond, as rapidly as possible, to specific inquiries raised by persons subject to
an Agency secrecy agreement as to whether specific materials require submission for review.
Procedures for submission are contained in HR 6-2. Further questions should be referred to the
Publications Review Board. Former employees should address all questions concerning secrecy
agreements to the Office of General Counsel,

2. The Agency considers the prior review requirement to be applicable whenever a
person bound by the secrecy agreement, express or implied, actually has prepared material for
public disclosure which contains any mention of intelligence data or activities or which may be
classified or classifiable pursuant to law or Executive order. The Agency views it to be that

December 1982

103

person’s duty to submit such material for review in accordance with the secrecy agreement. A
person’s obligation under the agreement remains identical whether such a person prepares the
material himself or herself or causes another person, such as a ghost writer, spouse, friend or as-
sociate to prepare the material.

3. The provisions of the secrecy agreement requiring submission of information or
materials for review are not limited to any particular category of materials or methods of dis-
closure. In the view of the Agency, these provisions apply to both oral and written materials.
With respect to written materials, the provisions apply not only to books but to all other forms
of written materials intended for public disclosure, such as (but not limited to) newspaper
columns, magazine articles, letters to the editor, book reviews, pamphlets, and scholarly papers.
Because alleged fictional treatment can be used as a subterfuge to convey factual information,
fiction about the CIA or about intelligence activities is covered by the agreements,

4. Oral statements constitute one of the most difficult areas in application of the secrecy
agreement. The agreement applies to material that the person contemplates disclosing publicly
or actually has prepared for public disclosure. It does not, in the Agency’s view, require the
preparation of such material. Thus, a person bound by the agreement is not in breach of the
agreement if that person participates extemporaneously and without prior preparation in an
oral expression of information (e.g., news interview, panel discussions, extemporaneous speech)
and does not submit material for review in advance. This does not, of course, exempt such per-
son from liability for any unauthorized disclosure of classified or classifiable information that
may occur in the course of such extemporaneous oral expression.

5. The requirement under the secrecy agreement is only to submit materials on the
subject matter of intelligence or the Agency and its activities or material which may be based
upon information classified or classifiable pursuant to law or Executive order. Current
employees must submit information which reasonably could be expected to impair the
employee’s performance of duties or interfere with the authorized functions of the Central In-
telligence Agency, including information which could have an impact on foreign relations. The
prepublication review requirement does not apply to topics that are totally unrelated to
intelligence matters, such as a manuscript of a cookbook, a treatise on gardening, or writings on
domestic political matters. Nor does the prepublication review requirement extend to
discussion of foreign relations not purporting to contain or be based upon intelligence
information.

6. Material that consists solely of personal views, opinions, or judgments on matters of
public concern and does not contain or purport to contain any mention of intelligence data or
activities or contain or purport to contain data which may be based upon information classified
or classifiable pursuant to law or Executive order is not subject to the prepublication review re-
quirement, For example, a person bound by the secrecy agreement is free, without prior
review, to submit testimony to the Congress or make public speeches or publish articles on such
topics as proposed legislation as long as the material prepared by such person does not directly
or by implication constitute a statement of an informational nature about intelligence activities
or substantive intelligence information, or in the case of current employees, impair the
employee’s performance or the authorized function of the Central Intelligence Agency,
including information which could have an impact on foreign relations. It should be obvious
that in some circumstances the expression of what purports to be an opinion may in fact convey
information subject to prior review under the secrecy agreement For example, a former
intelligence analyst’s opinion that the U.S. can or cannot verify SALT compliance is an implied
statement of fact about Agency activities and substantive intelligence information, and would
be subject to prior review.. This does not mean that such a statement necessarily would be clas-
sified and require deletion, but merely that the subject matter required review by the Agency
before publication. A discussion of the desirability of the SALT treaty based on analysis of its
provisions and without discussion of intelligence information or activities would not. It should
be clear that descriptions of an employee’s Agency activities can be expected always to require
prior review under these principles. At the other extreme, it is clear that a person subject to the
secrecy agreement, who writes or speaks about areas of national policy from the perspective of
an observer outside the Government and without purporting to rely on classified or classifiable
information, intelligence information, or information on intelligence activities, does not have to
submit such materials for prior review. While some "gray areas” may exist, persons subject to
the secrecy agreement are expected to err on the side of voluntary prepublication review in
keeping with the spirit and intent of the agreement.

104

Mr. Wilson. Thank you.

We are prepared to answer questions.

Mrs. Schroeder. Congressman Sensenbrenner, do you want to
kick off the process? We will rotate this around.

Mr. Sensenbrenner. Let me come back later.

Mrs. Schroeder. OK.

Mr. Sensenbrenner. My friend, Mr. Edwards, has had the last
word with the two previous witnesses. I will ask for the last word
this time.

Mrs. Schroeder. OK.

Congressman Edwards, would you like the first word?

Mr. Edwards. I guess it would be helpful — and we welcome you
gentlemen today— to explain to the committee the prepublication
review process that the CIA goes through. Would you tell us about
it, please?

Mr. Wilson. Tell you about the process?

Mr. Edwards. Yes. Tell us about the program, how it works.

Mr. Wilson. As I mentioned earlier, the prepublication process
at CIA derives from the secrecy agreement, which is a basic con-
tract that Mr. Willard described earlier very briefly, that deter-
mines as a condition of employment that each CIA employee agrees
never to divulge classified information that he may be exposed to
during the course of his employment, and more specifically goes on
to say that there will be a prepublication review requirement.

For many years, this was not a serious problem at CIA. There
was little inclination for employees or former employees to write.
Something occurred in the late 1970's which caused us to take a
good hard look at the possibility that there would be an increasing
inclination on the part of employees to write, and we decided that,
in the interest of good, tight security procedures, it was necessary
to formalize our prepublication review system.

We did that by devising a regulation and by constituting a publi-
cation review board. That is the board that I chair and which every
major component at CIA has a member who serves on it. Mr.
Mayerfeld on my left is the Agency's officially appointed legal ad-
viser to that board.

The system is simple, Mr. Edwards. When the board receives a
manuscript for prepublication review, it is reproduced, sent out to
the various members of the board, the clock is set and a deadline
established for completion of the review. The various members of
the board then, in turn, place the manuscript in the hands of those
people who are most qualified to deal with the review. The review
is accomplished. If any, the classified material in the manuscript is
identified, it is returned to me and, in the event there are trouble
spots in the manuscript, the board convenes to discuss those. On
the advice of counsel, if classified material holds up, the author is
so advised and, at that point, we either negotiate with him the nec-
essary changes or, on the other hand, there is no classified materi-
al, he is given M'ritten authorization to proceed to publish.

Mr. Edwards. Suppose a former employee is writing a novel like
Howard Hunt. Were all of Mr. Hunt's novels and detective stories
precleared?

Mr. Wilson. We have reviewed several of his fictitious

Mr. Edwards. All of them?

105

Mr. Wilson. No; not all of them. I can't say that with certainty. I
am sorry.

Mr. Edwards. Why not all of them?

Mr. Wilson. What you have to understand here is that there is a
specific reason for reviewing works of fiction. That reason is when
those works of fiction get too close to fact — Mr. Hunt has voluntari-
ly submitted several of his novels for our review, and I have to
assume it is because he wanted to be absolutely certain that his fic-
titious accounts were not getting too close to fact. I can't really tell
you other than that what motivated him to submit his material.

Mr. Edwards. If he didn't submit them, then he would be violat-
ing his agreement with you.

Mr. Wilson. He wouldn't violate his agreement unless the mate-
rial that he wrote about fit the guidelines under which the publica-
tions review board operates, which is that people who write about
material to which they were exposed during the course of their em-
ployment at CIA or which relates to classified material or intelli-
gence matters, that material must be submitted.

Mr. Edwards. In other words, the only material that you are au-
thorized to delete would be classified material?

Mr. Wilson. Precisely.

Mr. Edwards. Is that a firm rule?

Mr. Wilson. That is it.

Mr. Edwards. That classified material must be deleted.

Mr. Wilson. I might add that, in our internal governing regula-
tion, just to make that point abundantly clear, we have written in
an express prohibition against deleting other materials such as ma-
terial which would be critical of CIA or otherwise embarrassing to
the agency.

Mr. Edwards. But if a former employee writes a book like Mr.
Snepp wrote a book and he didn't preclear it and it was found to
have no classified information in it?

Mr. Wilson. That was never at issue in the Snepp case, no. Clas-
sification was not an issue. His secrecy agreement and violation of
his obligation for prepublication review was the issue.

Mr. Edwards. Howard Hunt did the same thing and you didn't
go after him.

Mr. Wilson. I am not sure I understand.

Mr. Edwards. He wrote books that weren't precleared. ITow do
you know if he didn't preclear them that they didn't contain infor-
mation about his former employment, classified information?

Mr. Mayerfeld. I defer to Mr. Wilson on the question of whether
Mr. Hunt submits all his material or not. It has been my impres-
sion that, since we formalized the process, he does.

Mr. Edwards. I think I would like to yield to Mr. Sensenbrenner.

Mr. Sensenbrenner. I thank the chairman for yielding.

It seems to me, listening to the way this hearing unfolds, is that
sometimes there are complaints if everything has got to be submit-
ted for preclearance, and now there are complaints that some
things don't have to be submitted for preclearance. I am a little bit
puzzled at that, but that is not for you to answer.

It appears that some of the Government agencies covered by the
directive will be looking at CIA procedures for prepublication
review since your review procedures have been in place for several

106

years and are in compliance with the Supreme Court's decision in
the Snepp case. In view of this, I have several questions.

Several witnesses last week testified that the CIA process is slow
and cumbersome. They specifically mentioned the McGehee case, in
which it is alleged that it took the author 2% years to get prepubli-
cation clearance. The majority in this committee has Xeroxed off
the appendix to Mr. McGehee's book entitled “This Book and the
Secrecy Agreement," which is seven pages long and which outlines
Mr. McGehee's frustration in the preclearance process.

Could you give this committee some background and state the
agency's side of the story?

Mr. Wilson. Of course, sir.

It is not an accurate characterization for anyone to suggest that
Mr. McGehee's book took 2 years to be cleared. Over the course of
2 years, Mr. McGehee made several submissions to the CIA for
clearance. As a matter of fact, that involved three lengthy manu-
scripts, each of which was yet another attempt to end up with a
successfully reviewed and authorized publication that he could
then take to a publisher.

Also during the course of that time, he submitted a chapter at a
time, a few chapters at a time, revisions of previous chapters, and
it was a very complex process.

I should also add that the publications review board, in the in-
stance of each of those several submissions, tried very hard to com-
plete the review within that 30-day standard which we impose
upon ourselves. To the best of my knowledge, I believe-— and I can
certify this — that the standard was met in each case.

But we really are not talking about one review, we are talking
about numerous reviews. I have a chronology of that entire process,
which I would be pleased to provide for the record if you are inter-
ested,

Mr. Sensenbrenner. I would appreciate that.

[The information follows:]

RALPH W. McGEHEE SUBMISSIONS TO
THE PUBLICATIONS REVIEW BOARD

Date Submitted

1. 26 Feb 80

2. 16 Apr 00

3. 2 May 80

4. 13 Nov 80

Date Author

Notified

Manuscript Title

Description/Comments

21 Mar 80

Reality Transformed: CIA,

Vietnam, Third World Interven-
tion, Multi-national Corpora-
tions, and the American

Political Process (212—80)

13 Chapters

Classified Information
Identified .

proposal that Author and
PRB Representative Work
Together to Arrive at a
Mutually Agreeable Text?
Proposal Accepted by
Author.

11 Apr 80

No Classified Information
Identified in the Revised
Text.

2 May 80

Honorable Mention: My Life
in the CIA (243-80)

Article

No Classified Informa-
tion Identified.

9 May 80

CIA’s Prior Review Under the
Secrecy Agreement (253-80)

Article

No Classified Informa-
tion Identified.

9 Dec 80

Reality Transformed: Intro-
duction (328-80)

1 Chapter, (Rewrite of

26 Feb Submission)

No Classified Informa-
tion Identified.

6 Jan 81

The Beginning
(342-80)

Article

No Classified Informa-
tion Identified.

5. 9 Dec 80

Date Submitted

6. 30 Dec 80

7. 23 Jan 81

8. 4 Feb 81

Date Author

Notified

Manuscript Title

Description/Comments

27 Jan 81

Evolution of the Covert Action
and Intelligence Roles of the

CIA (346-80)

Article

No Classified Informa-
tion Identified.

Untitled Book

3 Chapters

Policy Versus Intelligence —
Operations in Soviet Bloc

Countries (351-82)

No Classified Informa-
tion Identified.

Policy Versus Intelligence —
Representative Samples (351-81)

Classified Informa-
tion Identified.

Policy Versus Intelligence —

The Iranian Model (351-81)

No Classified Informa-
tion Identified.

20 Feb 81

Author Notified of
Security Objection.
Open Source Citation
/Footnote Provided by
Author.

2 Mar 81

No Classified Informa-
tion Identified.

Open Source Footnote
Required

3 Mar 81

Reality Transformed: My Diem

Chapter, (Rewrite of

26 Feb Submission)
Classified Informa-
tion Identified.

4 Mar 81

Security Objections
Reviewed and Withdrawn

Date Author

Date Submitted

Notified

Manuscript Title

Description/Coimients

9. 17 Feb 81

9 Mar 81

Reality Transformed: Pacifying
the Countryside (362-81)

Chapter

No Classified Informa-
tion Identified.

10. 4 Mar 81

2 Apr 81

Reality Transformed: The United
States Fights the War (374-81)

Chapter

No Classified Informa-
tion Identified.

11. 20 Mar 81

24 Mar 81

Reality Transformed: CIA

Operations in El Salvador
(387-81)

Article

Classified Informa-
tion Identified.

26 Mar 81

Litigation Proceedings
Initiated (to Restore
Deletions); Deletions
Upheld by Federal
Court.

12. 14 Apr 81

17 Apr 81

The El Salvador White Paper —
a C.I.A. Forgery? (397-81)

Article

Classified Informa-
tion Identified.

20 Apr 81

Revised Text Submitted
by Author

21 Apr 81

No Classified Informa-
tion Identified in
the Revised Text

13. 22 Apr 81

24 Apr 81

El Salvador: Which Vietnam?

(402-81)

Article

No Classified Informa-
tion Identified.

14. 20 May 81

20 May 81

Rebuttal to William Colby's

Rebuttal on El Salvador:

Which Vietnam (415-81)

Article

No Classified Informa-
tion Identified.

Date Author

Date Submitted

Notified

Manuscript Title

Descript ion/Comments

15. 3 Aug 81

5 Aug 81

The CIA's New Leadership:

What it Portends (445-81)

Article

Classified Informa-
tion Identified.

16. 14 Aug 81

17 Aug 81

Interview of Ralph McGehee
by Thomas Powers (453-81)

Interview Text

Classified Informa-
tion Identified

17. 6 Oct 81

9 Oct 81

Untitled Speech about CIA
(486-81)

Speech

No Classified Informa-
tion Identified.

18. 4 Dec 81

31 Dec 81

Reality Transformed: Outline
for Revised Version (523-81)

Outline

Author Notified that
Manuscript Contained
Classified Information

19. 22 Jan 82

5 Feb 82

Reality Transformed: Revised
Chapter 1 (553-82)

Chapter

Classified Informa-
tion Identified.

19 Feb 82

Deletions Appealed

8 Mar 82

PRB Decisions Reversed
on all but One Objection

16 Mar 82

Author Provides Open
Source Documentation
Citing Information in
the Remaining Deletion

25 Mar 82

Security Objection
Withdrawn in Light of
Provided Citations

Date Author

Date Submitted Notified

20. 5 Feb 82 23 Mar 82

24 Mar 82

29 Apr 82

Circa 25 May 82

27 May 82

21. 23 Mar 82 29 Mar 82

Manuscript Title

Reality Transformed: Revised
Chapter 2 (565-82)

Mr. David Phillip's Decision
to Retire (601-82)

Descriotion/Corrments

Chapter

Classified Informa-
tion Identified.

Author Notified that
Manuscript Contained
Classified Information

Author Meets with PRB
Representative to Dis-
cuss Deletions. Provides
Open Source Citations for
Classified Information

Author Notified that
Manuscript Still Contains
Classified Information

Author Submits Revised
Text; Author and PRB
Representative Worked
Together to Arrive at a
Mutually Agreeable Text

No Classified Informa-
tion Identified in the
Revised Text.

Article

No Classified Informa-
tion Identified.

Date Submitted

Date Author
Notified

Manuscript Title

Descr i p t ion/Commen ts

22. 23 Mar 82

Reality Transformed: Revised
Chapters 3, 4 and 5 (602-82)

Chapters

Author Agrees to Work With

PRB Representative to

Arrive at a Mutually

Agreeable Text on Chapters
Currently Under Review as

Well as Remaining Chapters.

30 Apr 82

Reality Transformed i Revised
Chapters 6-10 (631-82)

10 May 82

Reality Transformed: Revised
Chapters 11-14 (636-82)

2 Jun 82

15 Jun 82

Reality Transformed: Glossary
(649-82)

No Classified Informa-
tion Identified in the

Revised Text.

112

23. 2 Apr 82

2 Apr 82

Revised Mr. David Phillip's

Decision tc Retire (601-82)

Article

No Classified Informa-
tion Identified.

24. 15 Jun 82

30 Jun 82

CIA's Prior Review Under the

Secrecy Agreement (656-82)

Article

Classified Informa-
tion Identified.

25. 2 Aug 82

16 Aug 82

Reality Transformed: Miscel-
laneous Revised Pages (680-82)

Pages

No Classified Informa-
tion Identified.

113

Mrs. Schroeder. As you know, in last Sunday’s Washington
Post, Admiral Turner, the former CIA Director, wrote an article on
stopping the “covert operation in Nicaragua.” Was that article sub-
mitted for prepublication review, and how long did it take for you
to review that and approve it?

Mr. Wilson. Yes, sir, it was submitted for review, and it took 2
days.

Mr. Sensenbrenner. The gentleman from California has alleged
that there are different strokes for different folks applied, and that
articles by former CIA employees that are friendly to the Agency
and state the Agency’s side of the story get through quickly and
those that are hostile do not. Is this true?

Mr. Wilson. No, sir.

Mr. Sensenbrenner. How do you go about the review process if
you have several that come in at the same time? Are they reviewed
in the order which they have been submitted to the Agency all
within the 30-day adline or what?

Mr. Wilson. Normally, the standard is first in, first out. Let me
be quick to add onto that. That is the normal standard. We do,
however, take into account the extraordinary circumstances im-
posed by publisher deadlines, the nature of the work, the workload
that is currently out for review by the publications review board,
and other circumstances such as that.

Mr. Edwards. In other words, if somebody comes with a case
saying that the publisher is breathing down his neck and could you
do this quickly, you give him a break?

Mr. Wilson. Yes. Especially so in the case of short pieces where
they can be reviewed very quickly.

In the case of a 400- or 500- or 600-page, very complex book
manuscripts, that is a different story.

Mr. Sensenbrenner. With respect to works of fiction — and I
think there are some around here that say that anything that
came from a CIA employee or former employee is a work of fiction,
but irrespective of that personal opinion — I have before me a secre-
cy agreement which is attached as appendix A to your statement.
It does agree to submit for review by the CIA all information or
materials including works of fiction which contain any mention of
intelligence data or activities or contain data which may be based
upon information classified pursuant to Executive order.

How do you draw the dividing line on whether a novel about a
guerrilla war in a foreign country is based upon classified informa-
tion or not?

Mr. Wilson. Admittedly, it is a difficult problem. One might ask
how can fiction be classified; it is fiction and, therefore, only facts
can be classified?

Let me give you an example that is a real one that troubled our
review process at one point. We reviewed a submission by a former
operations officer who was involved in clandestine part of our busi-
ness for many years, in which he recounted a story that was such a
thinly veiled autobiographical account purporting to be fiction that
it was quite clear to us that it would not have taken a professional
in a hostile intelligence service very much effort at all to actually
pinpoint times, places and people who were currently in a classi-

114

fled status and could have led directly to the identification of sensi-
tive sources.

In that one instance, we negotiated with the author and caused
him to, in effect, fuzz up those sensitive areas sufficiently so that
he was eventually able to publish it. Does that help your under-
standing?

Mr. Sensenbrenner. Let’s talk about the Howard Hunt instance
where some books were submitted and some books were not.

Again, I think the chairman is attempting to lay groundwork for
• a different strokes for different folks scenario.

Mr. Edwards. Would the gentleman yield for just a minute.

Mr. Sensenbrenner. Sure.

Mr. Edwards. I appreciate you rephrasing my question.

Mr. Sensenbrenner. OK.

How do we make the determination in that particular instance
on whether the book does have to be submitted or doesn’t?

Mr. Wilson. Mr. Hunt has been fairly faithful to his agreement
to submit his material for review since 1979. My recollection is that
he has submitted five of his novels. Prior to that time

Mr. Sensenbrenner. How many do you know were not submit-
ted?

Mr. Wilson. I am not a follower of Howard Hunt’s material, so I
can’t answer the question.

Mr. Sensenbrenner. Neither am I.

Mr. Mayerfeld. We could make that available for the record if
you would like.

Mr. Sensenbrenner. I would appreciate that.

[The information follows:]

115

^ Central Intelligence Agcrxy

WaUrgtnDCMlHtt

jUfi 1983

* ’"i* ' f :**•'■'••- " *»~W? • ;>*

.Ms, He Ian. Gon 2 ale s-^'^yci. *,>»-. Vvl
v Assistant Counsel>ij^^^^: >; H
Y Subcommittee’ onYcivilYfi * ; f

Constitutional' Rights > *

• Committee on theV Judiciary
House of Representatives ‘ •*

*-•* Washington, *0.c: :r.2O515 . ■ \\
..*, *
Dear' Ms. ; " Gonzales:. ;i v 1 -'<*’?■

; ,;.f *r?,
‘y **’ » '

■*. T r * ** ' Enclosed you will find the following items which were ; •

■requested, in ’the course of the pre-publication review hearings:

» . • • •*. . \ ' »*!', ' •• .*- • • * -. ,
•t »\ S * \ •' V * ' . , '

a„. Chronology of 'Ralph McGehee submissions; ‘

. V.. "v- t b .7 '-List *~of E . Howard _ Hunt's manuscripts / Y*. v i; -/■'

.. : * ; i reviewed ;bjr CIA; and, .. ; • Y • •* ... V 7. . •* . .**

/ - **’/•; *c l V* List . .of * E . Howard Hunt's published works,

- ; ' :T .j > > including those published under nom de plume . '■ 7

; r.. Published'Jworks 7 reviewed by* the. Agency are denoted V J-.

‘" ^ ‘.Iby, upper *caseXj^ 7 Lfx : V / \ • . **' . • ..7 . \

Legislative Liaison Division
Office of. .External Affairs

Enclosures

Date Submitted

1. 26 Feb 00

2. 16 Apr 80

3. 2 May 80

4. 13 Nov 80

5. 9 Dec 80

RALPH W. McGEHEE SUBMISSIONS TO
THE PUBLICATIONS REVIEW BOARD

Date Author

Notified

Manuscript Title

Description/Comments

21 Mar 80

Reality Transformed: CIA,

Vietnam, Third World Interven-
tion, Multi-national Corpora-
tions, and the American

Political Process (212-80)

13 Chapters

Classified Information
Identified.

Proposal that Author and
PRB Representative Work
Together to Arrive at a
Mutually Agreeable Text;
Proposal Accepted by
Author.

11 Apr 80

No Classified Information
Identified in the Revised
Text.

2 May 80

Honorable Mention: My Life
in the CIA (243-80)

Article

No Classified Informa-
tion Identify ed-

9 May 00

CIA’s Prior Review Under the
Secrecy Agreement (253-00)

Article

No Classified Informa-
tion Identified.

9 Dec 00

Reality Transformed: Intro-
duction (328-80)

1 Chapter, (Rewrite of

26 Feb Submission)

No Classified Informa-
tion Identified.

6 J? ^ 81

The Beginning
(342-80)

Article

No Classified Informa-
tion Identified.

Date Submitted

6. 30 Dec 80

7. 23 Jan 01

8. 4 Feb 81

Date Author

Notified

Manuscript Title

Description/Comments

27 Jan 81

Evolution of the Covert Action
and Intelligence Roles of the

CIA (346-80)

Article

No Classified Informa-
tion Identified.

Untitled Book

3 Chapters

Policy Versus Intelligence —
Operations in Soviet Bloc

Countries (351-82)

No Classified Informa-
tion Identified.

Policy Versus Intelligence —
Representative Samples (351-81)

Classified Informa-
tion Identified.

Policy Versus Intelligence —

The Iranian Model (351-01)

No Classified Informa-
tion Identified.

20 Feb 81

Author Notified of
Security Objection.
Open Source Citation
/Footnote Provided by
Author.'

2 Mar 81

No Classified Informa-
tion Identified.

Open Source Footnote
Required

3 Mar 81

Reality Transformed: My Diem

Chapter, (Rewrite of

26 Feb Submission)
Classified Informa-
tion Identified.

4 Mar 01

Security Objections
Reviewed and Withdrawn

Date Author

Date Submitted

No titled

Manuscript Title

Description/Comments

9. 17 Feb 81

9 Mar 81

Reality Transformed: Pacifying
the Countryside (362-81)

Chapter

No Classified Informa-
tion Identified.

10. 4 Mar 01

2 Apr 81

Reality Transformed: The United
States Fights the War (374-01)

Chapter

No Classified Informa-
tion Identified.

11.. 20 Mar 81

24 Mar 81

Reality Transformed: CIA

Operations in El Salvador
(387-81)

Article

Classified Informa-
tion identified.

26 Mar 81

Litigation Proceedings
Initiated (to Restore
Deletions) ; Deletions
Upheld by federal
Court.

12. 14 Apr 01

17 Apr 81

The El Salvador White Paper —
a C.I.A. Forgery? (397-81)

Article

Classified Informa-
tion Identified.

20 Apr 81

►

Revised Text Submitted
by Author

21 Apr 81

No Classified Informa-
tion Identified in
the Revised Text

13. 22 Apr 81

24 Apr 81

El Salvador: Which Vietnam?

(402-01)

Article

No Classified Informa-
tion Identified.

14. 20 May 81

20 May 81

Rebuttal to William Colby’s

Rebuttal on El Salvador:

Which Vietnam (415-81)

Article

No Classified Informa-
tion Identified.

Date Author

Date Submitted

Notified '

Manuscript Title

Description/Comments

15. 3 Aug 61

5 Aug 81

The CIA's New Leadership:

What it Portends (445-81)

Article

Classified Informa-
tion Identified.

16. 14 Aug 01

17 Aug 81

Interview of Ralph McGehee
by Thomas Powers (453-81)

Interview Text

Classified Informa-
tion Identified

17. 6 Oct 81

9 Oct 81

Untitled Speech about CIA
(406-01)

Speech

No Classified Informa-
tion Identified.

10. 4 Dec 81

31 Dec 81

Reality Transformed: Outline
for Revised Version (523-81)

Outline

Author Notified that
Manuscript Contained
Classified Information

19. 22 Jan 82

5 Feb 82

Reality Transformed: Revised
Chapter 1 (553-82)

Chapter

Classified Informa-
tion Identified.

* 19 Feb 82

Deletions Appealed

8 Mar 82

PRB Decisions Reversed
on all but One Objection

16 Mar 82

Author Provides Open
Source Documentation
Citing Information in
the Remaining Deletion

25 Mar 82

Security Objection
Withdrawn in Light of
Provided Citations

Date Author

Date Submitted Notified

20. 5 Feb 02 23 Mac 02

2*1 Mar 02

29 Apr 02

Circa 25 May 82

27 May 82

21. 23 Mar 82 29 Mac 82

Reality Transformed: Revised
Chapter 2 (565-02)

Chapter

Classified Informa-
tion Identified.

Author Notified that
Manuscript Contained
Classified Information

Author Meets with PRB
Representative to Dis-
cuss Deletions. Provides
Open Source Citations for
Classified Information

Author Notified that
Manuscript Still Contains
Classified Information

Author Submits Revised
Text; Author and PRB
Representative Worked
Together to Arrive at a
Mutually Agreeable Text

No Classified Informa-
tion Identified in khe
Revised Text.

Mr. David Phillip's Decision
to Retire (601-82)

Article

No Classified Informa-
tion Identified.

Date Author

Date Submitted Notified

22. 23 Mar 02

30 Apr 82
10 May 82

2 Jun 82

15 Jun 82

23. 2 Apr 02 2 Apr 82

24. 15 Jun 82 30 Jun 82

25. 2 Aug 82 16 Aug 82

Reality Transformed: Revised
Chapters 3, 4 and 5 (602-82)

Reality Transformed: Revised
Chapters 6-10 (631-82)

Reality Transformed: Revised
Chapters 11-14 (636-82)

Reality Transformed: Glossary
(649-82)

Revised Mr. David Phillip's
Decision to Retire (601-02)

Author Agrees to Work With
PRB Representative to
Arrive at a Mutually
Agreeable Text on Chapters
Currently Under Review as
Well as Remaining Chapters.

No Classified informa- i— *

tion Identified in the
Revised Text.

Article

No Classified Informa-
tion Identified.

CIA’s Prior Review Under the Article

Secrecy Agreement (656-02) Classified Informa-

tion Identified.

Reality Transformed: Miscel- Pages

laneous Revised Pages (680-02) No Classified Informa-

tion Identified.

122

E. Howard Hunt Manuscripts Reviewed

By CIA

Apr 52

Appointment with Yesterday

Approved

Dec 50

The Judas Hour

Approved

Jan 52

Paris VIII

Approved

May 52

Whisper Her Name

Approved

Sep 52

Lovers Are Losers

Approved

May 53

Darkness on the Land

Approved

Jan 54

Streets of the Night

Approved

Oct 74

Autobiography of E. Howard Hunt

Changes

(Published as Undercover)

Jul 79

Hargrave Deception

Approved

May 80

The Gaza Intercept

Approved

Mar 81

REBUS

Approved

Jan 82

Quarry

Changes

Nov 82

Oval Office

Approved

Published Works of E. Howard Hunt *

Howard Hunt, except as indicated: East of Farewell , Knopf,
1942; Limit of Darkness , Random House, 1944; Stranger in
Town, Random House 1947; Maelstrom , Farrar, Straus,

1948; Bimini Run , Farrar* Straus, 1949; The Violent
Ones , Fawcett, 1950; GIVE US THIS DAY , Arlington House,
1973 ; The Berlin Ending: A.Novel of Discovery , 1973 ;
JUDAS HOUR , Pinnacle Books, 1973; WHISPER HER NAME ,
Pinnacle Books; LOVERS ARE LOSERS , pinnacle Books.

E. Howard Hunt: UNDERCOVER: MEMOIRS OF AN AMERICAN SECRET
AGENT , Berkley, 1974; THE HARGRAVE DECEPTION , Stein &
Day, 1980; GAZA INTERCEPT , Stein & Day, 1981; Science
Fiction in the Cinema , A. S’. Barnes 1970.

John Baxter: A Foreign Affair , Avon, 1954; Unfaithful ,
Avon, 1955: A Gift for Gomala, Lippincott, 1982;
Hollywood in the Thirties , A.S. Barnes, 1968.

Gordon Davis: I Came to kill , Fawcett, 1953; House Dick ,
Fawcett, 1961, published under real name as
Washington Payoff , pinnacle Books, 1975-; Counterfeit
Kill , Fawcett, 1963, reprinted under real name,

Pinnacle Books, 1975, Where Murder Waits, Fawcett,

1965.

Robert Dietrich: The Cheat , Pyramid Books, 1954; Be My

Victim , Dell, 1965; Murder on the Rock , Dell, 1957; Th
House on Q Street , Dell, 1958; Ena of a Stripper , Dell,
1959; Mistress to Murder, Dell, 1960; Murder on Her
Mind , Del, 1960; Angel Eyes , Dell, 1961; Calypso
Caper , Dell, 1961? Curtains for a lover , Lancer Books,
1962; My Body , Lancer Books, 1963; Ring Around Rosy ,
Fawcett, 1964.

David St. John: On Hazardous Duty , Signet, 19*65; Return
from Vorkuta , Signet, 1965; The Towers of Silence ,
Signet, 1966; Festival for Spies , Signet 1966; The
Venus probe , Signet, 1966; The Mongol Mask , Weybright,
1968; The Sorcerers , Weybright, 1969; Diabolus ,
Weybright, 1971; One of Our Agents Is Missing , Signet,
1972; The Coven , Weybright, 1972.

Play

Howard Hunt

Calculated Risk : a play, 1948.

*NCTE: Title in all caps indicates the work was reviewed by

CIA.

124

Magazine Articles

Harper * s , October 1974 : "Misunderstanding Secrecy"

National Review , April 29, 1977: "The Night Watch" (book
review)

National Review , July 8, 1977: "CIA’s Secret Operations"
(book review)

National Feview , June 13, 1980: "Castro's Worms"

Newsweek , April 4, 1977: "How America Looks to Me Now"

Mr. Sensenbrenner. Continue, please.

Mr. Wilson. All right, sir.

Prior to 1979, my record shows that Mr. Hunt submitted one of
his novels, in 1974. That was before time, before my involvement in
the prepublication review process, and I can't testify as to why he
happened to have submitted that particular one.

Mr. Sensenbrenner. Thank you very much. I yield back.

Mrs. Schroeder. Thank you,

Congressman Gekas?

Mr. Gekas. Thank you.

I would like to hone in a little bit on the body of the secrecy
agreement itself. As a practical matter, do the employees who sign
the agreement have counsel with them? Do you observe that? Have
they submitted their secrecy agreement to their private counsel or
bring in counsel at the time of negotiations, so to speak?

Mr. Mayerfeld. Routinely, this does not happen.

Mr. Gekas. In the Snepp case or any other case, was the secrecy
agreement itself attacked as being null and void by the former CIA
agent?

Mr. Mayerfeld. Yes, that was, in effect, his theory of the case.
That was his defense.

Mr. Gekas. Obviously, the material was not classified, but that
the agreement was null and void. What was the basis? I am not
familiar with the case. What did they say about the agreement?
Was it a violation of the first amendment?

Mr. Mayerfeld. That was their major argument. There were
some additional defenses that he had, that we broke our part of the
agreement insofar that we did not permit him to air his grievances
in-house. All of those various defenses were ruled inadequate.

Mr. Gekas. Was he an attorney himself?

Mr. Mayerfeld, No.

Mr. Gekas. Are many of the people who sign secrecy agreements
who become agents also attorneys?

Mr. Mayerfeld. Not many,

Mr. Gekas. I am just wondering. I have seen cases, at least in
Pennsylvania jurisdications, where, without clauses in it that indi-

125

cated that the document has been reviewed by counsel or that they
waive that right and fully understand — say that they fully under-
stand that even though they have that right to submit it to coun-
sel — that that kind of situation has allowed an agreement to be
voided.

How old is the craftsmanship of this secrecy agreement?

Mr. Mayerfeld. It is quite recent. This particular version which
is in the record is — well, it is not noted here. As I recall, it is Feb-
ruary 1983.

Mr. Gekas. Of 1983?

Mr. Mayerfeld. Yes.

Mr. Gekas. That is pretty modern.

Do you know whether or not it was just a copy of a previous se-
crecy agreement?

Mr. Mayerfeld. No. There were some minor changes.

Mr. Gekas. There is another thing I would like to ask you with
respect to that. It seems to be not a simultaneously executed bilat-
eral agreement. That is, it doesn't seem to be the type of case
where the agency agrees to pay x amount of dollars under employ-
ment conditions; and on the other side, the individual pledges him-
self to secrecy. It seems to be a routine agreement or form that the
applicant has to sign, and then later it is decided whether or not he
is going to be hired. Is that correct? Or has there been determina-
tion ahead of time throughout the application process that this
man is a good man, we are going to hire him, now we have to make
sure that he signs a secrecy agreement?

Mr. Mayerfeld. It is the latter, Congressman. The agreement is
signed upon entrance on duty. So that agency's obligation that we
enter into is to give the man a job.

Mr. Gekas. But you are saying for the record that the efficacy of
the agreement itself has not been attacked as being null and void
on grounds other than first amendment rights?

Mr. Mayerfeld. That is correct. That is the only challenge to
that agreement since Snepp, as I recall, other than Mr. Snepp's
various defenses that we did not live up to it.

Mr. Gekas. My cursory review as an attorney yields no defects at
this moment.

I thank the Chair.

Mrs. Schroeder. Thank you.

Congressman Pashayan?

Mr. Pashayan. Thank you.

I wasn't here earlier, and I apologize. I guess I have one or two
questions, and forgive me if they turn out to be repetitious.

You would extend the notion to other agencies than the CIA that
an employee or a prospective employee can be bound by an agree-
ment not to disclose information without the prior approval of the
agency; is that what you are here to say?

Mr. Mayerfeld. That is correct, Congressman. I was one of the
signatories of the so-called Willard report, and I do agree with it,
yes.

Mr. Pashayan. Is that information that would fall under this
provision the kind that would be related to the national security of
the United States?

33-307 0-84 5

126

Mr. Mayerfeld. Yes, that is the total limits of President Rea-
gan's directive. It only is concerned with national security classi-
fied information.

Mr. Pashayan. Of course, the CIA has a great amount of this
kind of information. Other agencies would have very little or none.

I suppose the concern— and I haven't been here to hear — but my
guess is the concern of some of the people here would be that this
be used as an excuse — the fear would be that this be used as an
excuse to withhold the publication or utterance of information not
really related to the national security, of which other agencies
would have more of than the CIA.

Mr. Mayerfeld. Congressman, it is hard for me to answer that
question as to what other agencies would do. But I believe that
CIA’s experience in this prepublication review process — I think
probably ours is the largest of the existing programs and the most
active — provides some evidence that this is a process that can be
very carefully done and great care can be taken that indeed noth-
ing is ever disapproved for publication unless a clear, convincing
case is made that damage to the national security* would result
from the publication of such information.

Mr. Pashayan. Are you familiar with the Snepp case?

Mr. Mayerfeld. Indeed, I am.

Mr. Pashayan. Is it your interpretation that the Supreme Court
relied on the fact there was national security information involved?

Mr. Mayerfeld. No. In fact, the way we presented the case is
that we said, for the purposes of this litigation, we concede that
there is nothing classified in the book. What the Government tried
to establish in the Snepp case is that it is necessary to have the
prepublication obligation honored in order to protect the national
security.

Mr. Pashayan. The Snepp case then talked about a relationship
between an employee and the agency more than about the informa-
tion; is that correct?

Mr. Mayerfeld. That is quite correct.

Mr. Pashayan. What relation, in your opinion, is between the
Snepp case and what you are trying to do? Is there any relation-
ship between the two? You are talking about information and the
Snepp case was talking about an agreement, so we are putting the
two together to the extent you are saying the Snepp kind of agree-
ment certainly ought to apply to your kind of information.

Mr. Mayerfeld. That is right.

Mr. Pashayan. But you are not attempting to extend — once
again, you are only talking about national security information; is
that not right?

Mr. Mayerfeld. That is all that

Mr. Pashayan. Whereas, the Snepp case leaves it open as to
what kind of information is being talked about.

Mr- Mayerfeld. I am not sure it does, Congressman. I think the
Snepp case was in the context of the trust relationship that the Su-
preme Court found between the employee and the Agency was
founded on the fact that the employee had access to national secu-
rity information.

Mr. Pashayan. That was my first question to you on the Snepp ,
what the relationship was.

127

Mr. Mayerfeld. It was essential to the case. I misunderstood the
question. I thought you asked me whether we in fact contended
that he disclosed classified information. He did not.

Mr. Pashayan. No.

Mr. Mayerfeld. But the issue of national security, the issue of
what was the nature of the trust relation, that the Government
provided him with the most sensitive information was essential to
the case.

Mr. Pashayan. Let me just make a general statement. When I
served in the U.S. Army for 2 years, I served in an intelligence
unit, and I was subjected to taking a lie detector test. I had to sign
similar papers. Once having done that, I had access to all sorts of
information. After I left the Army, I had a restriction on my
travel, where I could travel, and even some flights I was prohibited
from taking and others, if I took them, I was to notify for a period
of 2 or 3 years thereafter.

I have had the experience of seeing the kind of information that
would be subject to this kind of a rule. Some of it really can be
quite sensitive. Some of it, if revealed, can be injurious in two re-
spects. First of all, it might be injurious to the national interest
just to reveal the information or whatever substance the informa-
tion itself has. Second of all, and perhaps more important, the im-
proper revealing of information, it can be deduced from that that
we have certain abilities to gather the information, and that, in a
national security context, can certainly be injurious.

I suppose what we are here to balance is first amendment rights
versus the applied police power of the state to contain information
really for the benefit of all. I would say that, personally, I felt no
impingement on my first amendment rights because of the kind of
information that I personally saw 10 or 12 years ago in the Army
that we are dealing. At least the vast majority of information that
I personally came across, I felt was properly classified and properly
withheld.

Mrs. Schroeder. I would like to ask some questions because I
think the issue now becomes — I would like to follow forward on
what Congressman Edwards was saying.

In the Snepp case, you stipuated there was no national security
problem. So, therefore, we are not talking about somebody who re-
vealed it. The issue is the contractual relationship or that trust re-
lationship between employer and employee, which I have no prob-
lem with either. The question is why was he selected versus other
people who also were in that trust relationship but put books out
and you didn’t go after them? I think that is the issue. I think that
nobody here is defending anybody’s to put out classified informa-
tion, and the stipulation was he wasn’t putting out classified infor-
mation. We are just doing it on the theory that everybody has to
bring it in to make sure. I understand that. Why one, why not the
other?

Mr. Mayerfeld. The Snepp case was not really one of a whole lot
from which we had to pick and choose — and we say we pick Mr.
Snepp because he is saying beastly things and we don’t pick on Mr.
Hunt because his novels are harmless. We knew that Mr. Snepp
was writing a book. Mr. Snepp made no effort to conceal it. Mr.
Snepp had frequent discussions with senior people in the Agency

128

about whether he was going to submit to his legal obligation and
submit the book for prepublication review.

Mr. Snepp repeatedly told us that he would do so. Mr. Snepp
made a personal promise to the then Director, Admiral Turner,
that he would submit the manuscript for prepublication review.

Mrs. Schroeder. Would you say that it was kind of a macho
thing, that he dared you to do it, whereas Hunt didn't bother and
others didn't bother — I mean was this mutually assured machoism?

Mr. Mayerfeld. I don't know if I would characterize it as macho,
Madam Chairwoman. I think he was, in fact, trying to test this.

Mrs. Schroeder. When he is not the only violator, why do you
select one versus the other, and there wasn't sensitive information
revealed? I think that is a big concern when we are talking about
something as serious as first amendment rights.

I wanted to ask how much all of this costs.

Mr. Wilson. There is an important point left out there. No one
said that there was not sensitive information revealed.

Mrs. Schroeder. You stipulated that there was no

Mr. Mayerfeld. We stipulated it for purposes of that litigation.

Mrs. Schroeder. Do you think there was sensitive information
revealed?

Mr. Mayerfeld. We know in fact that there was. But that was
not what we

Mrs. Schroeder. But you don't know if there was sensitive infor-
mation revealed in other books that haven't been preclassified?

Mr. Mayerfeld. Yes, we do. If some publication slips by the proc-
ess, it is indeed reviewed thereafter to determine whether there
was any.

Mrs. Schroeder. But it is the selective prosecution that is dis-
tressing.

Mr. Mayerfeld. I think the decision was made to recommend to
the Department of Justice to proceed against Snepp before anyone
had a chance really to digest the book to determine whether it was
critical or not. We did not see the manuscript beforehand. It was
indeed in this case a matter of great principle. He did flout his obli-
gations. He violated his repeated promises to submit the book and
he surreptitiously went about publishing it. I think that we, in that
case, had no options. If you would call that selective prosecution, so
be it.

Mrs. Schroeder. With others, it could be equally as harmful in
the books that they print. I guess what it does is just be mellow
and don't tell everybody what you are going to do and it may slip
through.

Mr. Wilson. There are other bases for that selectivity, I submit.
There are occasions where conscious decisions have been made, and
the author and his identification and personality, and so on is not
part of that decision at all. What is the basis of the decision is the
material involved and the disclosure.

I am talking in general terms about other decisions that have
been made not to prosecute an author. The simple overriding fact
is that the prosecution would then go on to entail the disclosure of
more information than the disclosure already made.

Mrs. Schroeder. It doesn't if you do it on the same relationship
because you stipulate and you go after him on the contract. I don r t

129

see how you could possibly say that that leads you into more classi-
fication by your own terms.

How many people are involved in this? How many people are
there in this class subject to this prereview in the CIA, some kind
of overall estimate? What do you think it costs every year to main-
tain this service for those people?

Mr. Wilson. The numbers of people involved in the review proc-
ess?

Mrs. Schroeder. Yes.

Mr. Wilson. There are, in addition to myself, six senior officers
at CIA who are the principal component representatives, who are
the representatives to the board. In addition, I would characterize
Mr. Mayerfeld as being a senior official who spends a reasonable
amount of his time advising the board. It is not a full-time duty on
the part of any of us.

I can't give you a precise answer on how many people might be
involved in any given review. It depends upon the extensiveness
and complexity of the material how it has to be fanned out among
various agency components for review.

I am not trying to beg the question, Madam Chairwoman, I just
can't really pinpoint the quantifiable resource number.

Mrs. Schroeder. Are contractors covered?

Mr. Wilson. Yes.

Mrs. Schroeder. So if the CIA is doing independent contracting
with contractors, they then cover their employees with the same
kind of trust agreement that would be enforceable?

Mr. Wilson. That is correct.

Mrs. Schroeder. Thank you.

Congressman Edwards, did you have another question?

Mr. Edwards. I have one more question, thank you, Madam
Chairwoman.

The selective enforcement — I know you understand it — is a very
big subject because, if there is selective enforcement, then this en-
larged program that we are looking at today that is going to be
throughout the Federal Establishment is very important. That is
why we are really asking the questions of you in such depth.

For example, William Buckley worked for the CIA in the 1940's
and 1950's, pnd he admits that he signed prepublication agree-
ments. He wrote three spy novels, none of which were submitted
for prepublication review. He says this in magazine articles. Would
that be selective enforcement?

Mr. Wilson. Mr. Buckley worked for CIA many, many years ago
for a very, very brief period of time, less than a year. My under-
standing of his employment at that time, and I am not intimately
acquainted with it, is that he was exposed to very little, and that
long ago. Any material that he writes about in his fictitious books
are not the kind of thing that would be of particular interest to us.

Mr. Edwards. I see.

Mr, Mayerfeld, you are part of the Willard task force and you
are acquainted then with the Biden report that Mr. Willard re-
ferred to. It is my understanding of the Biden report that the con-
clusion was that most of the leaks they reviewed fell into three cat-
egories: No. 1, so many people had access to the information that
the leak couldn't be traced; No. 2, the leaks were traced to high-

130

level policy people in the White House or at State — for example,
Secretary Kissinger himself, and the investigation had to stop, of
course — and No. 3, the leaks were official, ds with the Stealth
bomber case when Carter announced it on TV. '

Is that an accurate description or semiaccurate description of the
Biden report?

Mr. Mayerfeld. I don’t have the Biden report in memory, but I
would assume it is, yes.

Mr, Edwards. Thank you.

Mrs. Schroeder. Thank you both. We appreciate it.

We will keep the record open for questions from counsel because
of the time constraints this morning. We appreciate your being
here.

Our final witness — and we are almost going to make it, I think —
is Maynard Anderson, the Director of Security Plans and Programs
at the Department of Defense. Mr. Anderson, we appreciate your
being here.

We will use the same ground rules. We will put your testimony
into the record. You are welcome to summarize or, if you want, just
fire off. We are all set for whatever you want to do.

TESTIMONY OF MAYNARD ANDERSON, DIRECTOR, SECURITY
PLANS AND PROGRAMS, DEPARTMENT OF DEFENSE

Mr. Anderson. Thank you, Madam Chairwoman and Mr. Chair-
man and members of the subcommittee.

By way of introduction, just let me say that, as Director for Secu-
rity Plans and Programs, I report to the Deputy Under Secretary
of Defense for Policy, Gen. Richard Stilwell, and I am responsible
for policies concerning personnel security, physical security, indus-
trial security, and some elements of the information security pro-
gram in Defense. I am General Stilwell’s principal adviser on spe-
cial programs as well, so I deal in matters relating to sensitive
compartmented information in that capacity.

I know you want to ask some questions about the nondisclosure
agreement and our implementation of it this morning, as well as
our use of the polygraph examination. I have just gotten the statis-
tical data on last year’s use of the polygraph in Defense which I
provided to your counsel this morning. If you are interested, she
can pass that out to you,

Mrs. Schroeder. Thank you. That will be very helpful to us.

Mr. Anderson. On that basis, I am available.

Mrs. Schroeder. Congressman Pashayan, do you want to open
with questions?

Mr. Pashayan. Not at this time, Madam Chairwoman.

Mrs. Schroeder. I guess what I would like to do is start with the
polygraphs then on competive service employees and criminal
cases. How do you do that legally under the Federal Personnel
Manual.

Mr, Anderson. We are obligated under the Federal Personnel
Manual to obtain the permission of the Office of Personal Manage-
ment to conduct such polygraph examinations on competitive serv-
ice employees of the Department of Defense. We do submit such a
request annually to the Director of OPM. He has responded in the

131

past favorably to us and, on an annual basis, given us permission
to do that.

Mrs. Schroeder. Do you use any resources to devote research
into the validity and reliability of the polygraphs? We had prior
testimony — you may have heard it — about the barber and the hair
dye.

Mr. Anderson. Well, Mr. Ansley tesfied last week for us from
NSA. I understand that there were questions asked as to the reli-
ability and the validity of the instrument. Congressman Brooks, as
you may know, has requested the Office of Technology Assessment
in support of the Congress to do a study of that. I would like to
defer comments on that pending results of that study.

Mrs. Schroeder. There was a GAO report, I think, last year — I
am not sure — but it said that DOD had fishing expeditions with
polygraphs last year for the source of leaks and came up empty.
What utility do you find in polygraphs in investigating leaks?

Mr. Anderson. The policy of the Department of Defense is that a
polygraph examination is used as an investigative technique only.
It is not used in the manner of a fishing expedition. If the evidence
in the case does not support a conclusion and it is the only means
available that remains, and there is perhaps a suspect identified
where circumstantial evidence or other evidence indicates he might
be guilty, a request for polygraph at that time may be made-on a
voluntary basis, I might add.

Mrs. Schroeder. We keep running up against this stone wall,
and that is that the directive was required by all of the leaks that
have gone on, that all of the leaks are classified. How many of
those leaks have come out of the Department of Defense?

Mr. Anderson. I don't have statistics on recently reported leaks,
either to the Information Security Oversight Office or the Depart-
ment of Justice. Those are reported by Defense components and
Defense elements. Military departments report directly, as do De-
fense agencies.

I know that GAO looked into, I think, 68 investigations of leaks
classified material in the last 10 years. That would have been going
back from October 1982. That may be a representative number, but
I am not certain of that.

Mrs. Schroeder. Do you also oversee and use the polygraphs and
everything on DOD contractors?

Mr. Anderson. Yes, ma'am.

Mrs. Schroeder. Have you any breakout for us on leaks from
contractors versus in-house employees?

Mr. Anderson. I do not.

Mrs. Schroeder. Is there any way we can get that information?

Mr. Anderson. I am not personally aware that we have had any
recent cases involving contractor employees, but I will question the
components and make that availble to you.

Mrs. Schroeder. Can we get numbers or any general feeling for,
not contracted employees, but Federal employees in DOD? Can we
get any numbers on that?

Mr. Anderson. Who have been investigated?

Mrs. Schroeder. Yes, or of leaks — who have been found to be
leakers. I hate that word.

Mr. Anderson. Surely, I can attempt to get that for you.

132

[The information follows:]

Office of the Under Secretary of Defense,

Washington, DC, June 1, 1983 .

Mr. Andrew A. Feinstein,

General Counsel, Subcommittee on Civil Service,

Cannon House Office Building, Washington, DC

Dear Mr. Feinstein: As a follow up to my testimony, I am attaching herewith a
list identifying various unauthorized disclosures. The attached list was prepared in
cooperation with the U.S. Army Intelligence and Security Command, the Naval In-
vestigative Service, the Air Force Office of Special Investigations, and the Defense
Investigative Service.

In addition, the Defense Intelligence Agency reported 20 "leaks” in 1982. Each
“leak” was investigated, resulting in only one report to Justice. None of these
“leaks” involved contractors or consultants.

If you have any further questions or I can be of further service, please call.

Sincerely,

Maynard C. Anderson,
Director, Security Plans and Programs.

Attachment.

Unauthorized Disclosures

(The following cases were investigated and prepared by the U.S. Army Intelli-
gence and Security Command.)

1. Case # CE 79-136-02: Secret and Confidential information concerning Army
signals intelligence capabilities was published in the Defense Electronics Magazine
in 1979. An investigation was opened on 10 September 1979, and is still pending.

2. Case # SO 80-020-02: Secret information concerning an Army communications
jammer was published in the Defense Electronics Magazine in 1979. An investiga-
tion was conducted, during which the purported source, a DoD employee, was poly-
graphed with negative results. The case was closed on 21 May 1981, due to lack of
leads.

3. Case # SO 80-070-01: In 1979, technical Secret and Confidential information
was published in the Microwave Systems News Magazine. Investigation was begun
on 24 March 1980. The publisher denied that he used classified information as
source material for the article. The case was closed with no further leads on 11
August 1981.

4. Case # SO 80-089-03: Secret intelligence information involving reports of
chemical warfare by Soviet forces in Afganistan was published in the Baltimore
Evening Sun in 1980. An investigation, opened on 8 April 1980, determined that the
leak originated at the NSC or Department of State. The case was closed 16 Septem-
ber 1980 because the leak was determined to be outside of Army investigative juris-
diction.

5. Case # SO 81-017-02: Top Secret intelligence information concerning new
Soviet missile capabilities was published in International Defense Review in 1980.
Investigation disclosed that the information was derived from two NSA documents.
The investigation was closed on 1 July 1981 because the magazine was published in
Switzerland and there were no tangible CONUS leads.

6. Case # SO 81-200-02: Secret information concerning Army force expansion
was found published in Army Times in 1981. The investigation, which was begun on
14 July 1981, revealed that the same information had appeared in numerous unclas-
sified internal Army Staff memos and on an unclassified page of the draft Program
Objectives Memorandum (POM). The case was closed on 5 October 1981.

(The following cases were prepared and investigated by the Navy Investigative
Service (NIS). Case Numbers were not assigned by NIS.)

7. An article believed to contain Secret compartmented information appeared in
Electronic Warfare magazine in 1974. Investigation revealed that the article may
have been drawn from official unclassified data. Investigation stopped as DoD offi-
cials did not desire contact with magazine.

8. Sea Technology magazine contained Confidential information about a nuclear
powered submersible. Investigation was closed 23 January 1975 due to lack of leads
and minimal damage to national security.

9. In 1975, a radioman assigned to the USS CORAL SEA disclosed a Confidential
message to his dependents concerning personnel problems aboard his ship. Contents
of the message appeared in the San Francisco Examiner. Action is still pending.

133

10. An article appeared in Aviation Week Magazine in 1975 containing informa-
tion classified Confidential. Investigation was closed after it was discovered that the
information had been developed from an open source, The Congressional Record.

11. In 1977, the London Economist published an article containing Top Secret in-
telligence information. A retired Navy Commander, the author of the article, was
considered a principal suspect. The matter, however, has never been successfully re-
solved,

12. An article appeared in the Stars and Stripes concerning Confidential messages
found in trash in Subic Bay. The investigation, opened on 1 November 1979, identi-
fied suspects who provided the media with a copy of a Confidential message. The
case is still open.

13. In 1979, an edition of Aviation Week carried an article which was determined
to contain Top Secret intelligence information. The investigation was closed without
establishing culpability.

14. The Defense Electronics magazine contained an article in a 1979 issue which
disclosed Secret information concerning computers. The investigation cancelled (for
unspecified reasons).

15. In 1980, a retired Navy Captain working with the Copley News Service wrote
an article for the San Diego Union concerning boost in combat ships. The article
contained Confidential information. An investigation was conducted.

16. In 1980, an article appeared in Aviation Week concerning undersea weapons.
The information was classified Secret/ WNINTEL. NIS investigation determined
that the unauthorized disclosure resulted from a briefing given to members of the
Senate Armed Services Committee's Staff on 26 November 1980 by the Navy Intelli-
gence Support Center. Only six staff members were determined to have attended
the briefing and the investigation was referred to the FBI. All six attendees were
interviewed by FBI Special Agents. All denied culpability and agreed to undergo
polygraph. The Department of Justice decided to forgo polygraph examinations.

17. In 1981, the Boston Herald American published an article on Russian subma-
rines that contained Confidential information. Investigation was cancelled due to
minimal national security damage.

18. In 1980, a petty officer assigned to the USS RICHARD E. BYRD disclosed clas-
sified information pertaining to the BYRDs operations in the Mediterranean to a
writer for the Virginian Pilot. That information subsequently appeared in a newspa-
per article. As a result, the petty officer received a letter of reprimand and a reduc-
tion in rate under Article 15 of the Uniform Code of Military Justice.

(The following cases were investigated by the U.S. Air Force Office of Special In-
vestigations.)

19. 75HQD34-8682: In 1975, articles appeared in the Rocky Mountain News and
Baltimore Sun which contained information on possible Soviet violations of SALT
agreements. The information most probably came from a widely disseminated
SECRET document.

20. 7669D34-85: In 1976, a USAF NCO pending court-martial for other offenses
sent a letter containing a description of his job to Stars and Stripes newspaper. That
information was evaluated as Confidential. The letter was retrieved without publica-
tion.

21. 76HQD34-8686: In 1976, an article in Commerce Business Daily identified the
specific site of a construction project involving a sensitive weapons security system.
The information was classified Confidential /Formerly Restricted Data, but had been
provided along with other unclassified data due to administrative error.

22. 78HQD34-8690: In 1978, a syndicated reporter asked a senior USAF officer for
information regarding capabilities of Soviet vs. U.S. missiles and aircraft. The con-
tent of the reporter’s questions revealed specific knowledge of classified information,
including material classified Top Secret plus special accesses required. It is not
known whether the reporter actually published his classified knowledge.

23. 78HQD34-740: In 1978, articles in the Austin American-Statesman and San
Antonio Express News contained information on the location of a USAF unit with a
classified mission. While the classification of the material was Secret/Formerly Re-
stricted Data, the same information had also appeared in other news publications as
early as 1975.

24. 7804D34-1153: 780D34-888— Articles in several 1978 issues of Electronics War-
fare — Defense Electronics magazine contained information regarding electronic war-
fare capabilities and countermeasures of the U.S. and other nations. Data apparent-
ly came from a Secret document which had been inadvertently mailed to the pub-
lisher.

25. 8013D34-522: In March 1980, in a television interview for the “Jack Van Impe
Presents" show, aired in San Diego, CA, a USAF member allegedly disclosed classi-

134

fled information regarding Strategic Air Command alert procedures in case of nucle-
ar attack, Investigation revealed that the information was not classified.

26. 8004D34-1158: In 1980, an RKO-TV reporter produced one Secret and two
Confidential Air Force films during an interview with a senior Department of De-
fense official. The films had been improperly released to the reporter on a telephone
request. Established procedures at the releasing activity were not followed.

27. 8013D34-525: In 1980, a newspaper reporter submitted several Freedom of In-
formation Act (FOIA) requesta to various Air Force and Department of Defense offi-
cials. Some FOIA requests contained Secret correspondence and actual excerpts
from Congressional testimony by the Commander-in-Chief, Strategic Air Command,
regarding mission, capabilities and future plans.

28. 8018D93-13: In 1980, a freelance reporter and aviation author asked a senior
USAF officer by telephone for information on a joint Navy-Air Force flying training
program. The reporter revealed specific knowledge of material classified SECRET.
The reporter made a personal pledge to the officer not to publish the material, a
pledge he apparently honored.

29. 8162D34-396; In a 1981 interview with a foreign newspaper reporter, a USAF
member disclosed information on a U.S. nuclear weapons location, classified Secret/
Formerly Restricted Data. The USAF member was already awaiting discharge for
an unrelated offense. The reporter’s interview was not published.

(The following cases were investigated by the Defense Investigative Service.)

30. 75009-DO5-4529-3C9: In 1974, Aviation Week and Space Technology printed
information concerning the production figures of the Condor Missile, The informa-
tion was classified Confidential.

31. 75184-D05-4535-3D9: In 1975, a newspaper disclosed the payload of the Posei-
don Missile. The information concerning its accuracy, and explosive yield were clas-

Gift pH Rpprpf /"RpctTMPf'oH

32. 7 5259-DO5-4501-3B9: Confidential Naval position paper data dealing with
force level of Navy aircraft was printed in 1975.

33. 75328-D05-4527-3D9: Secret information concerning Trident Missile capabili-
ties and fuels appeared in the print media in 1975.

34. 76335-DO5-4601-3C9: Top Secret/ Code Word information was released to the
news media. The infox*mation related to the threat to NATO posed by the Soviet
military build up in 1976.

35. 76336-D05-5114-3C9: Information marked Secret (NOFORN) Sensitive
Sources was released by the Associated Press. The information concerned the ship-
ment of military equipment to another country.

36. 76336-D05-5115-3C9: News articles released by the Associated Press contains
information relating to arms for Rhodesian nationalists and to Soviet and Cuban
involvement in South Africa. The information was classified Secret/NOFORN
WINTEL.

37. 77292-DO4-4701-3C9: Top Secret Code Word information concerning Soviet
charged particle beam weapon capabilities appeared in the print media in 1977.

38. 78041-DO4-4701-3B9: In 1977, media published classified information concern-
ing high altitude large optics project. The information was classified Secret/ Code
Word.

39. 78165-DO4-4701-3B9: DoD employee furnished a Secret document to an un-
cleared Senate staffer in 1978.

40. 79184-DO4-5401-3B9: In 1979, media published information concerning the
SALT II monitoring documents. The information was Top Secret intelligence.

41. 80244-DO4-3101-3E9: Information classified Secret appeared in the print
media in 1980 concerning Stealth technology.

42. 81118-DO4-3202-3C9: Secret information concerning reloading capability of
SS-18 silos was used by a broadcaster in 1981.

43. 81134-DO4-3201-3C9: Top Secret/Code Word information concerning Russian
troop movements around Poland was published in the press in 1981.

44. 81166-DO4-3201-3E9: Secret/Special Access information concerning Stealth
technology appears in media in 1981.

45. 81224-DO4-3101-3C9: Secret information was published by the local press. The
information was regarded as highly sensitive because it concerned meetings of the
ongoing SALT talks.

46. 81247-DO4-3001-3E9: In 1980, the print media disclosed Top Secret informa-
tion concerning some phases of the rescue mission in Iran.

47. 81342-V01-0002-3B9: In 1981, the print media disclosed Secret information
concerning the alleged Libyan plot to assassinate the President.

48. 82027-V01-0001-3C9: Print media carried Secret intelligence photo of Russian
aircraft in 1981.

135 ;

49. 82027-V01-0002-3C9: Print media carried Secret information concerning De-
fense Resources Board meeting.

50. 82027-V01-0003-3C9: Print media published Secret information concerning
the location of MIG-23's in Cuba in 1982.

51. 82049-VG1-0004-3C9: In 1982, the print media disclosed Secret information
concerning a military exercise. The case is still pending.

52. 82049-V01-0005-3C9: In 1981, the CIA requested DoD investigative assistance
concerning print media release of information concerning “Laser Battle Stations.”

53. 82049- V01-0006-3C9: In 1982, the Department of State requested DoD investi-
gative assistance concerning news release of classified/sensitive diplomatic informa-
tion.

54. 81009-D04-3301-3B9: In 1980, a reporter possessed and printed excerpts from
classified document.

(The following cases were investigated by the Defense Investigative Service. These
cases deal with unauthorized disclosures to a contractor.)

55. 76281-D05-5614-3B9: In 1975, Top Secret intelligence was disclosed concern-
ing Soviet chemical warfare; doctrine and capabilities to a contractor.

56. 77080-D05-5601-3B9: In 1977, Confidential information was provided to a pri-
vate contractor concerning foreign sales of military equipment.

57. 78082-DO4-4701-3Z9: In 1977, Secret and Confidential documents were re-
leased improperly to a contractor concerning DoD budgetary information.

58. 78026-DO4-6301-3B9: In 1977, Confidential information was released to a con-
tractor concerning a study of guns/ ammunition.

(The following case* were investigated by the Defense Investigative Service. These
cases deal with unauthorized disclosures by a contractor.)

59 76096-DO4-4701-3B9, also reopened as 78096-DO4-4701-3B1: A Top Secret
draft message from SECDEF to the President concerning the MX missile illegally
obtained by contractor and sent to their corporate HQ via nonsecure means.

60. In 1979, a DoD contractor was alleged to have made unauthorized disclosure of
Secret information which was contained in a draft GAO report concerning F/A-18
fighter.

Mrs. Schroeder. Do you find that your tools are adequate at the
moment if there is a leak in the Defense Department or among
contractors to find them?

Mr. Anderson. Investigation of unauthorized disclosures of clas-
sified information are terrible cases. The dissemination of the in-
formation is extraordinary. The ubiquitous Xerox machine is in
evidence. It really is difficult to pin it down.

From an investigative capability standpoint, yes, I think we are
capable of investigation, Whether or not we are capable of pros-
ecuting or taking action against someone who intentionally leaks
classified information is questionable.

Mrs. Schroeder. Congressman Pashayan, do you have any ques-
tions?

Mr. Pashayan. Do you feel that the polygraph test is effective?

Mr. Anderson. I think so, yes, sir.

Mr. Pashayan. Explain to me how you feel it is effective.

Mr. Anderson. I think that in a case in which an individual is
suspected and there is not enough evidence from other sources to
draw a conclusion, it is effective from two standpoints. We use the
polygraph not convice, but we use the polygraph in an objective
sense to determine whether someone is innocent as often as guilty.

As a matter of fact, I was told yesterday that a great number of
our cases run no deception indicated. If we have done that, we have
solved the case just as readily as if we have obtained a conviction.

Mr. Pashayan. Let us take a hypothetical 100 people to whom
you have given each a polygraph test. Of those, how many would
you say are found, to use your word, “innocent,” and how many
are found guilty, in your experience?

136

Mr. Anderson. Hypothetically, and based on conversations yes-
terday with some professional examiners, I recall — and I think the
figure is accurate — about 40 percent were no deception indicated.

Mr. Pashayan. Does that mean 60 percent were found deception
indicated?

Mr. Anderson. Or no reaction or no conclusion.

Mr. Pashayan. Then there are three categories. I am probing for
the category of how many of that 100 would be found deception in-
dicated?

Mr. Anderson. I could not answer that.

Mr. Pashayan. We know, according to your numbers, that it
could not exceed 60 percent.

Mr. Anderson. Right.

Mr. Pashayan. But could you venture an educated guess?

Mr. Anderson. I would venture in that case close to 60.

Mr. Pashayan. Close to 60.

Mr. Anderson. Surely.

Mr. Pashayan. The one or two that are neutral, that you can't
tell, is very small?

Mr. Anderson. Yes, that is right. I would think so.

Mr. Pashayan. We shall not subject you to a polygraph test.

Mr. Anderson. Thank you.

Mrs. Schroeder. Thank you.

Congressman Edwards?

Mr. Edwards. Thank you, Madam Chairwoman.

Did shockwaves go through the Pentagon yesterday when Dr.
Beary's recommendation was made public?

Mr, Anderson. I don't think so, sir.

Mr. Edwards. That Beary memo was dated December 16, 1982,
and was classified. Why in the world would that be classified?

Mr. Anderson. Classification is the prerogative of the originator.
In this case, I would say Dr. Beary exercised good judgment when
he declassified it.

Mr. Edwards. But if somebody declassified it, it would be subject-
ed to all of the penalties of the agreements that they had signed,
somebody other than Dr, Beary.

Mr. Anderson, If it was contrary to the national interest, yes,
sir,

Mr. Edwards. We had witnesses come over from the Pentagon
and they testified, not under oath, about the announced plan sever-
al months ago to increase the number of polygraph examinations
to 30,000 or 40,000 a year or something. They either did not know
about the classified Beary memo or they elected not to tell the com-
mittee.

Mr. Anderson. I think, Mr. Chairman, that memorandum was
submitted the day after the testimony or very nearly at that time.

Mrs. Schroeder. We didn't get them, but that is neither here nor
there.

How does your process, your prepublication review process, differ
from that of the CIA?

Mr. Anderson, For persons indoctrinated for sensitive compart-
mented information who have signed nondisclosure agreements —
and ours happens to be substantively the same as that used by the
Central Intelligence Agency — anyone who anticipates or contem-

137

plates publication would submit to the Security Control Office in
the military department of the defense component — principally the
Defense Intelligence Agency in Defense — such manuscript for
review.

We operated under the same constraints. We are obliged to turn
that around in 30 days and give an answer to the individual sub-
mitting it. If there is information that originates from another
agency, then we provide that information to the other agency and
ask them for determination as to whether or not it should be re-
moved or it may be published. That generally is the case with this
kind of information, as a matter of fact.

Mr. Edwards. Thank you very much.

Mrs. Schroeder. I want to thank all of the witnesses.

We apologize — our timing is correct. We were told that very
shortly after 11 there would be a vote and fun and games would
break out — so while we would like to do more questioning, it looks
like we have to go to the floor and it looks like we better just keep
the record open so counsel can ask more questions.

Mrs. Schroeder. Mr. Anderson, we appreciate your patience and
your openness in the study. Thank you very, very much.

Mr. Anderson. Thank you.

Mrs. Schroeder. The hearing is adjourned.

[Whereupon, at 11:05 p.m., the subcommittees were adjourned.]

PRESIDENTIAL DIRECTIVE ON THE USE OF
POLYGRAPHS AND PREPUBLICATION REVIEW

TUESDAY, FEBRUARY 7, 1984

House of Representatives, Subcommittee on Civil and
Constitutional Rights, Committee on the Judiciary
Joint with Subcommittee on Civil Service, Commit-
tee on Post Office and Civil Service,

Washington, DC.

Following is the unclassified transcript of the closed hearing held
by the subcommittees on February 7, 1984. Where words have been
deleted, brackets appear. Where the typeface within the brackets is
the same as the main text, the material within the brackets is an
unclassified summary of what was said. Where the material within
the brackets is in italics, the material within the brackets is a de-
scription of what was said or a notion that words were deleted. The
name of the witness from the National Security Agency has been
deleted and he is referred to throughout as “NSA Witness.”

The subcommittees met, pursuant to call, at 9:35 a.m., in room
2235, Rayburn House Office Building, Hon. Don Edwards (chair-
man of the Subcommittee on Civil and Constitutional Rights) pre-
siding.

Present: Representatives Kastenmeier, Edwards, Schroeder, Sen-
senbrenner, Gekas, DeWine, Pashayan, and Wolf.

Also present: Department of Justice: Richard K. Willard, Acting
Assistant Attorney General for the Civil Division.

Central Intelligence Agency: John H. Stein, Deputy Director for
Operations; Clair George, Director, Legislative Liaison; Ernest
Mayerfield, Deputy Director, Legislative Liaison; Edmund Cohen,
Associate General Counsel; David Pearline, Legislative Liaison.

National Security Agency: [Name deleted], Chief, Intelligence
Staff, Operational Directorate; John Anderson, General Counsel.

Department of Defense: Maynard Anderson, Director, Security
Plans and Programs; John F. Donnelly, Director, Counterintelli-
gence and Investigative Programs; and Roger Pitkin, Commander,
U.3. Navy.

Mr. Edwards. The subcommittees will come to order.

At our last hearing on the subject of the Presidential Directive
on Safeguarding National Security Information, we were told by
Mr. Willard that the directive was needed because of numerous in-
stances of unauthorized disclosures of classified information in the
past.

( 139 )

140

The witnesses declined to publicly provide examples of those un-
authorized disclosures because classified information would be in-
volved. Accordingly, this executive session was scheduled.
t I would like to stress at the outset that our purpose today is very
limited; we are concerned solely with the impact the directive
would have had on the unauthorized disclosures you are about to
describe.

The question is, Would it have made any difference if you had a
comparable prepublication review system or polygraph require-
ment in place? If so, how?

Thus, the details of the leaks and their effect on national securi-
ty are but tangentially of interest and should not be the focus of
our deliberations. Furthermore, because this session is being held
behind closed doors, I hope we can contain ourselves to examples
and facts which are classified, and leave all other matters for
public discussion.

Finally, because highly sensitive information will be disclosed
today, I would just remind those present that we must be particu-
larly cautious in discussing these matters in the future.

This is a joint hearing with the Subcommittee on Civil Service,
chaired by the gentlewoman from Colorado, Mrs. Schroeder. I yield
to her.

Mrs. Schroeder. Well, Mr. Chairman, I will be very brief.

Basically, the Subcommittee on Civil Service is very interested in
underlining what the chairman said. That is, we want to make
sure that if these things are put into effect, they really would make
a difference.

. Second, the subcommittee will be having hearings on the Brooks
bill which has been introduced on this, and there will be a follow-
through.

Mr. Edwards. Thank you.

Mr. Sensenbrenner.

Mr. Sensenbrenner. No comments, Mr. Chairman.

Mr, Edwards. Do any members of either subcommittee desire to
make a comment?

I recognize the gentlewoman from Colorado.

Mrs. Schroeder. Mr. Chairman, I regret we have to do this, but I
guess we do, so I guess I have to move to close the hearing at this
time and on that, we have to have a rollcall vote.

Mr. Edwards. Is there a second?

Mr. Sensenbrenner. I second.

Mr. Edwards. Is there discussion on the motion? If not, the
Chair notes a quorum being present. All in favor signify by saying
aye; a rollcall is required. The clerk will call the roll. The Civil
Service Subcommittee will be first.

The Clerk. Mr. Udall.

[No response.]

The Clerk. Mrs. Hall.

[No response.]

The Clerk. Mr. Sikorski.

[No response.]

The Clerk. Mr. Pashayan.

Mr. Pashayan. Here.

The Clerk. Mr, Wolf.

141

[No response.]

The Clerk. Mr. Conyers.

[No response.]

The Clerk. Mr. Kastenmeier.

[No response.]

The Clerk. Mrs. Schroeder.

Mrs. Schroeder. Aye.

The Clerk. Mr. Schumer.

[No response.]

The Clerk. Mr. Sensenbrenner.

Mr. Sensenbrenner. Aye.

The Clerk. Mr. Gekas.

Mr. Gekas. Aye.

The Clerk. Mr. DeWine.

Mr. DeWine. Aye.

The Clerk. Mr. Edwards.

Mr. Edwards. Aye.

The motion is carried by a rollcall vote and the two subcommit-
tees will resolve themselves into a closed hearing.

Mr. Richard K. Willard, Acting Assistant Attorney General for
the Civil Division, representing the Department of Justice, and you
are in the middle, Mr. Willard, and do we have from the CIA?

Mr. Willard. Mr. Chairman, from CIA, to my left, is Mr. John
Stein.

Mr. Edwards. Deputy Director for Operations. Welcome, Mr.
Stein.

Mr. Stein. Good morning.

Mr. Willard. To my right is [name deleted], who is in charge of
the NSA’s Operations Directorate Intelligence Staff.

My preface will be very brief, before I introduce the two substan-
tive witnesses this morning.

I think it is really unnecessary to give much by way of security
introduction to the classified information that will be described be-
cause I think it will be apparent to the members of the committee
after hearing the information why it is classified and why it is sen-
sitive.

As I stated before the open hearings were held last year on this
subject, sometimes the examples of unauthorized disclosure are
more classified when you explain them than the disclosure itself
was because you not only repeat the information that was dis-
closed, thus confirming the accuracy of that information, but you
also explain how it damaged our intelligence operations, and that
explanation itself usually goes far beyond what the disclosure dis-
closed and may expose the vulnerabilities of our intelligence appa-
ratus even more graphically. That is why this hearing had to be a
closed hearing and why these examples are classified and very
highly classified.

The overall classification level of information that we will be pre-
senting at this briefing is top secret, [code word, including] various
compartments, [which include], signals intelligence from NSA,
[and] refer to our primary aerial reconnaissance compartments.

In addition, just the level of classification is not really descriptive
of what is involved here because this is a compilation of a group of
sensitive secrets and when you put them all together it makes the

142

sensitivity of the information greater than it would be if you took
one item and talked about it in isolation.

In other words, to put it simply, you take this information to-
gether and it creates a roadmap for an adversary to see many of
the vulnerabilities of our intelligence community and how they
have been compromised. That is why this hearing had to be held in
closed session.

We have convinced the intelligence agencies represented here to
present this information to the committee because we think it is
important for you to do your job in assessing national security deci-
sions and whether it makes any sense. For that reason, we have
overcome some initial high reluctance, I would say, to present this
large amount of highly classified information in this kind of a set-
ting.

The intelligence community has established a practice of provid-
ing this kind of information to the House Permanent Select Com-
mittee on Intelligence and to the Senate Select Committee on Intel-
ligence because they have the ongoing facilities to deal with that
kind of information. These committees have not had that experi-
ence in the past. We recognize the legitimacy of the importance of
your concerns and your inquiries, that is why we are here today
and we are willing to present this information.

I would like to introduce first, John Stein, who is as we said ear-
lier Deputy Director for Operations at CIA. That is the component
of CIA that conducts all clandestine operations. Mr. Stein is a grad-
uate of Yale University, served in the U.S. Army, and beginning in
1955 has been employed by CIA. [Mr. Willard summarized Mi\
Stein’s background with CIA].

Mr. Stein. Good morning, Chairman Edwards, Chairman Schroe-
der, members of the subcommittees.

Today, as Mr. Willard explained, I am here in closed session to
provide you a briefing on certain specific examples of unauthorized
disclosures. The examples I will discuss fall into three categories.
The first will be examples of leaks. By a leak, 1 mean the unau-
thorized disclosure of classified information to the media by a
person with authorized access to that information.

The second category will be examples of unauthorized disclosures
of classified information contained in books which did not undergo
prepublication review, but which were written by persons with au-
thorized access to the information.

The final category will be examples of items of classified infor-
mation saved by the prepublication review process, that is, exam-
ples of items of classified information identified in manuscripts
submitted for prepublication review which, as a result of that iden-
tification, were deleted from the manuscript before publication.

These few examples will be illustrative to you of the damage
which results from leaks. Some concern intelligence provided by
human sources, others intelligence provided by technical collection
systems. They run in time from the early 1970’s to the present day,
thereby illustrating that the underlying problem is not a new one,
but one which has been with us for a number of years.

The unauthorized disclosure of classified intelligence information
presents special problems. When intelligence information is re-
vealed, an intelligence source or an intelligence method may be

143

compromised. Compromise may mean that the source or method is
foreclosed to the Agency; and thus one of the Agency's principal
functions, the gathering of intelligence, is thwarted. This, in turn,
means that the United States is deprived of information necessary
to conduct its national defense or foreign relations.

In addition, by compromising an intelligence source or method,
the revelation may place the life of a human source in jeopardy or
render an expensive technical collection system ineffective. For
these reasons, the Agency views unauthorized disclosures which
reveal, or help to reveal, intelligence sources and methods as par-
ticularly pernicious.

Let me turn to the first category, examples of leaks.

My first example is a leak which threatened to place [certain]
sources in jeopardy and which significantly reduced the ability of
the Agency to gather certain key intelligence from [a] region. It oc-
curred in articles which were published in [a newspaper]. These ar-
ticles [words deleted] contained direct quotations from a series of
Directorate of Operations intelligence reports. The articles con-
tained classified information on [military operations of a foreign
country].

All told, these articles contained information which had been ob-
tained from a [sizeable number] of separate sources [in foreign
countries].

Many of these sources had provided information to us at great
personal risk. In one instance, this leak resulted in extinguishing
the usefulness of an important source of information on [military
operations of an unfriendly foreign country]. For this particular in-
dividual, who routinely traveled to and from [that country], the
publication of these articles tended to identify him so closely as a
CIA source that he cannot safely step foot in [that country] again
without fear of swift retaliation from [that country's] Government.
The loss of this source resulted in permanent and serious damage
to our ability to monitor [military operations in that region].

Another individual source had left [a foreign country] just days
before the publication of these articles due to other risks to his se-
curity. However, even if these other, unrelated, threats to his secu-
rity would be neutralized, the publication of these articles made it
a virtual certainty that this source could not return to [that coun-
try] under the current regime.

We do not know to what extent these articles may have compro-
mised the security of the other sources whose information was
used. However, one of these sources who was himself implicated by
these leaks, has given us detailed eyewitness accounts of [a coun-
try's] efforts to closely monitor U.S. media, to isolate leaked intelli-
gence reporting, and to identify the person who provided the infor-
mation. In addition, such leaks have made [certain countries] more
acutely aware of our intelligence requirements so that they now
take countermeasures to prevent us from gathering such informa-
tion; the result is that our ability to gather intelligence in [the
region] has been sharply curtailed.

[Mr. Stein told how, as a result of the leaks, access to information
about foreign military operations of a certain country has been re-
stricted .]

144

Let me give you another example. After one leak, an Agency
source reported that [the] Intelligence Chief [of a foreign country]
issued a thinly veiled warning to delegates to a secret meeting
[words deleted] that [they] were aware of leaks about past meet-
ings. He flatly told the delegates that the U.S. Government was
being apprised of these proceedings. This comment by [name delet-
ed] followed interrogations by intelligence officers of delegates to
the meeting regarding previous leaks. We know from our sources
that their fear of swift, certain, and deadly retaliation if discovered
is very real.

In summary, although the full extent of the damage caused by
the [word deleted] articles may never be fully known, what we do
know is bad enough. A unique and sensitive source was compro-
mised with little hope for replacement. For another source, unable
to return for many reasons, these articles stand as a final and per-
haps absolute bar to any future operational use in [that country].

The net result of these leaks was to further drain the pool of
available information regarding [military] activities in [that
region], and to impair the ability of the U.S. policymakers in both
the executive and legislative branches to engage in informed delib-
eration and debate on [that region's] affairs. The leaks which oc-
curred in these articles vividly display the perils of unauthorized
disclosures of classified information. Although these articles were,
no doubt, published with the best of intentions to contribute to
public debate and to the store of public knowledge on [that region],
their effect was quite to the contrary.

By placing sources in potential jeopardy and by alerting the
other side to their ongoing intelligence-gathering activities, the
publication of these articles significantly obstructed the flow of in-
formation and thereby created new areas of darkness for policy-
makers and legislators to contend with. For the intelligence com-
munity, the publication of these articles meant that additional re-
sources would have to be devoted, not to brightening new areas
with additional information, but to regaining, if possible, lost
ground.

Another example of a damaging leak, and one which relates to
an important CIA [activity also appeared in a newspaper] article.
[Words deleted.] The article, after detailing U.S. and CIA support
[of the activity], also discussed the involvement of [other countries].

The result: an angry President and Foreign Minister [of one
country]. Our Chief of Station was advised of the Government of
[that country's] great unhappiness over “another example of how
the U.S. Government could not keep a secret to protect its friends.”

At the same time, the Chief of [another country’s] intelligence
service after noting U.S. agreement to maintain total anonymity,
stated that “the disclosure is detrimental to any future efforts be-
tween us.” [This country was providing assistance to] the effort and
asking in return that we not disclose their assistance so that they
would not be attacked by [other countries] for being a tool of U.S.
interests. Not too much to ask in return for their assistance.

[Mr. Stein described the first country’s fear of retaliation.} They
only asked that their role in providing assistance to the CIA pro-
gram be protected. Again, not too much to ask.

145

These [foreign countries] did not stop their cooperation based on
this article, but their concern that the United States was not living
up to its promise of confidentiality was palpable. Sparse in detail
as this article was, it provoked a stiff reaction and, in the opinion
of our experts, had the [second country] felt that their [assistance]
was becoming a foreign policy risk, they simply would have with-
drawn, with very serious consequences to the program.

Similarly, if sufficient information linking [the first country] to
the CIA program is surfaced, then [that country's] participation
also will become untenable. All the CIA needs to maintain the co-
operation of its friends is for it to be able to honor its promise of
confidentiality.

[Mr. Stein then proceeded to provide examples concerning techni-
cal collection systems costing millions of dollars that have been
compromised by leaks and as a result the effectiveness of these sys-
tems as technical collectors have been reduced or rendered worth-
less. Because these collection systems are highly classified, it is not
possible to provide further details.]

I will now turn to the category of books written by persons with
authorized access to classified information which were not re-
viewed prior to publication but which did contain classified infor-
mation.

The most egregious example of books in this category are the
works of Mr. Philip Agee. As you may know, Mr. Agee is a former
Agency employee who resigned in 1968 and went on to write and/
or edit several books about the Agency, the early ones of which
were not submitted for republication review. These include “Inside
the Company: CIA Diary" and “Dirty Work: The CIA in Western
Europe."

In addition, Mr. Agee participated in the writing and publication
of the newsletter “Covert Action Information Bulletin." In these
publications, most especially “Covert Action Bulletin", Mr. Agee
revealed the identities of U.S. intelligence personnel and of persons
who cooperated with U.S. intelligence agencies.

Recognizing the significant damage done to our foreign relations
and intelligence operations by Mr. Agee and those of a similar
bent, the Congress passed and the President signed the Intelligence
Identities Protection Act. As you know, that act makes it a crime
to reveal the identities of intelligence personnel and intelligence
agents in a systematic fashion as Mr. Agee did.

In various of his unreviewed works, Mr. Agee revealed the
names and identifies of numerous officers and agents. Rather than
repeat here all of which he has said and done, let me just give one
example which I think will illustrate the damage caused.

At the time “Inside the Company" was published, 1975, there
were two individuals, members of [an organization in a foreign
country], who had volunteered their services to the Agency in the
1950s. Prior to the publication of the book, both of these sources
had provided a great deal of intelligence information on [the orga-
nization's] activities.

Among its other uses, this information had been used to help
frustrate the [organization's] attempts at guerrilla warfare and ef-
forts to mount terrorist attacks. Each of the individuals was men-
tioned by name in the book “Inside the Company", As a result, the

146

Agency had to sever its relationships with both sources and this, of
course, deprived the United States of intelligence information to
which it previously had access.

The next example of an unauthorized disclosure contained in an
unreviewed book is an example taken from the book written by a
former Agency employee, [words deleted]. In this book, [this em-
ployee] detailed his activities as an Agency employee [abroad].

One of the unauthorized revelations of classified information in
[the book] concerned a politician [in a certain country; herein after
Mr. “A In the book, [the author] notes that he, as an Agency em-
ployee, met clandestinely on several occasions with Mr. ["A”] who
was, at the time, [a high official of that country]. The fact that a
relationship existed between Mr. ["A”] and the Agency was, of
course, classified information. At the time of the book's publication,
the incidents described by [the author] were over 20 years old and
Mr. [“A”] was no longer a high official. Mr. [“A”] is, however, cur-
rently a leader of a [political] party, [words deleted] The revelation
of Mr. [“A's”] previous clandestine relationship with the Agency
obviously exposes him to charges that he is an agent of the United
States, thereby lessening his influence. Moreover, if he were to be
returned to power, it is unlikely that he would again have confi-
dence in CIA's ability to keep secret any confidential relationship.

A third example of an unauthorized disclosure contained in an
unreviewed book can be found in [a book by a non-Agency author].
[The author described his involvement in a U.S. Government activi-
ty abroad.] In describing [this operation the author] indicates that
he received very useful intelligence [words deleted] from a CIA em-
ployee inserted into [a certain country]. In describing this CIA em-
ployee, [the author gave a vivid physical description].

[The author's] characterization of the CIA employee is quite ac-
curate. We did, in fact, insert him into [that country]. This individ-
ual was instrumental in making arrangements to [conduct this op-
eration]. From the descriptions of our employee given in [the au-
thor's] book, [this country] will probably be able to identify our em-
ployee. Since we must assume that [this country] and probably the
Soviets are aware of the CIA affiliation of our man, we will prob-
ably be precluded from using this extraordinary individual for
other sensitive projects. In addition, this leak would have endan-
gered the [foreign nationals] who cooperated with our man if we
had not already exfiltrated them after the [operation].

I do not think it would have been too much to ask for [the
author] to submit his book for prepublication review. If he had
done so, the sentence regarding the description of our case officer
would have been deleted and the identity of our officer would have
remained secure. I do not believe [that public] debate would have
been seriously affected by whether [the author's] book contained
physical description of our man. Surely any titillation a reader
may get from reading this passage cannot justify foreclosing for-
ever the use of a valuable case officer.

Another example of classified information contained in [the
same] book can be found in the portion of the book describing how
the U.S. Government was able to gather useful information based
on [a particular intelligence method], [words deleted] Because of
this revelation of how U.S. intelligence agencies can use [this intel-

147

ligence method], we anticipate that in future situations forces hos-
tile to the United States will take precautions to ensure that infor-
mation that would be useful to [us] will [no longer be made avail-
able]. This will, of course, make any [similar operation] that much
harder.

The last category of examples concerns secrets which were not
lost but rather those that have been saved. Specifically, it is exam-
ples of classified information which have been identified through
the prepublication review process and which, as a result thereof,
were deleted from the final manuscript.

The first example comes from Henry Kissinger's book “Years of
Upheaval". Mr. Kissinger submitted portions of his book to the Na-
tional Security Council, NSC, for review. The NSC, in turn, submit-
ted those portions concerning the CIA to the Agency for review.
That review identified several items of classified information. To
cite one example, in the version submitted to the Agency for
review, Mr. Kissinger in discussing a particular incident, [made a
statement that would have revealed the existence of a technical
collection system]. This item was identified to Mr. Kissinger and it
was deleted from the book as finally published. The system is still
in use today.

The second example concerns a manuscript written by a former
Agency operations officer who retired years ago. The manuscript
was styled as a work of fiction but the fictional veil was simply
transparent. The story was centered around the attempted recruit-
ment by Agency officers of an [foreign] official stationed in [a cer-
tain country]. In recounting the operation, the officer revealed a
great deal about the Agency's presence and operations in [that
country]. This included certain events which would have greatly
antagonized the [people of that country].

In addition, the author included information concerning the fact
and nature of the cooperation between the Agency and the intelli-
gence services [of that country]. As you know, although that [for-
eign] Government publicly denies the fact of cooperation with the
Agency and, indeed, denies there is an Agency presence in [that
country], that Government does, in fact, cooperate with CIA. Were
this cooperation to be revealed by a present or former CIA officer,
however, there would be significant diminution in such cooperation
and significant damage to intelligence relations [with that country].

Even more damaging, the manuscript revealed a number of what
are known as unilateral operations, that is, intelligence operations
conducted without host-country knowledge, and in fact, directed
against the host country. Obviously, it could not help [American]
relations [with that country] if it had been revealed that CIA has a
component within the CIA Station in [that country] devoted to pen-
etrating [that country's] Government.

The classified portions of the manuscript were identified to the
officer and he agreed not to publish the original manuscript until
it could be rewritten in such a way as to make the fictional veil
less transparent. To the Agency's knowledge he has not, as of this
date, undertaken a revision.

In addition to the examples of secrets saved that I just discussed,
there is one additional example of a secret saved. This secret per-
tains to a current source that has provided the U.S. Government

148

with very valuable information that is of unique value. Because of
the source's value and the probability that the source would be
killed if his collaboration with CIA were revealed, the DCI has au-
thorized me to discuss this example with members only.

In addition, there are five other examples of information that
were leaked to the media which I am authorized to discuss with
members only.

Four of these examples involve current operations and the fifth,
a future technical collection system costing hundreds of millions of
dollars. The restrictions are necessary because standard security
practices require that we confine this type of information, which is
tightly held^ even within the Agency, to the fewest number of indi-
viduals possible. If you wish to hear this testimony, I respectfully
request that at the time of your choice the room be cleared of all
staff and non-CIA personnel so that I can discuss these examples.

In conclusion, I would like to point out that the examples that I
have given today are merely illustrative of the leak problem.

From the fiscal years 1979 through 1983, we have counted 370 in-
telligence leaks. We are not talking about any items which are
picked up and replayed after the initial leak. We are not counting
leaks of U.S. foreign or defense policy, we are not talking about
leaks concerning U.S. weapons or military operations. All we are
counting is first-time leaks of intelligence information and informa-
tion relating to intelligence sources and methods.

We consider this to be a very serious problem. Not only is 370 a
large number, but our analysis has revealed that year by year the
number of leaks has been increasing. In addition, the lag between
the date of the classified source document and the revelation of the
classified information in the media is decreasing. In other words,
not only is more intelligence information being compromised, more
and more recent information is being exposed.

This identifies a serious erosion of security discipline and cannot
fail to diminish the effectiveness of your intelligence service and
mine. The issue goes considerably beyond a paper exercise of trying
to show a direct cause-and-effect relationship between this leak and
that source, this disclosure and the loss of that collection system.
Instead, what must be self-evident to you all is that there are cer-
tain matters which a Government must be able to keep secret. At a
minimum, if we are to remain a world-class Nation and have an
effective intelligence service, we must protect our sources, our liai-
son relationships, and the capabilities of our technical collection
systems. But, as my testimony has shown, in all too many cases we
are not adequately protecting our vital intelligence secrets and
frankly we need your help.

This concludes this portion of my testimony.

Mr. Willard. [The NSA witness] has a statement. We are willing
to proceed at the committee's pleasure. As Mr. Stein indicated, he
had several matters that he was only cleared to discuss with the
members only, not even with the rest of us in the room from out-
side of CIA.

Mr. Gekas. I move that the meeting now become closed to mem-
bers only for the purpose of hearing the testimony of Mr. Stein as
to the matters which he says could be disclosed to the members
only.

149

Mr. Edwards. Do we want to do that before [NSA witness] testi-
fies?

Mr. Gekas. I thought it might be appropriate since it is fresh in
our minds the testimony that he has just given.

Mr. Sensenbrenner. I would just as soon have the CIA do all
theirs at once.

Mr. Kastenmeier. Are we going to have the room cleared on
other occasions, too?

Mr. Willard. Mr. Kastenmeier, this is the only information like
that. All of NSA’s testimony is cleared for members and staff as
well, and so, we can either take a break now and present the bal-
ance of Mr. Stein's examples, or we can do that at the conclusion of
the rest of the hearing.

Mr. Edwards. We will want to ask Mr. Stein some questions.
That won't mean he will leave?

Mr. Willard. No.

Mr. Edwards. It will probably be more orderly to have Mr. Stein
finish his testimony and, without objection, we will clear the room.

Discussion off the record .]

Mr. Stein then provided in restricted testimony to members only
examples of certain other highly damaging leaks . CIA provided the
following summaries of some of these examples .

[Example A. This example concerns a newspaper article describing
a new method by which a foreign power hostile to the United States
has been collecting intelligence . As a result of this leak , the agent
who had provided us this information became extraordinarily con-
cerned that his collaboration with the CIA would be uncovered . He,
therefore, informed us that he was terminating his cooperation with
us. This decision was of particular concern to CIA since we did not
want to lose a source who had provided us unique intelligence .

[Example B . This example concerns a newspaper article describing
a CIA agent in the highest levels of a particular foreign government.
As a result of this leak, this source was questioned by the internal
security forces of his country and he abruptly ceased his relation-
ship with CIA . This decision has an adverse effect on the ability of
CIA to supply specific intelligence to policy maker's as the source
provided unique information and was considered irreplaceable .

[Example C . This example concerns two newspaper articles de-
scribing certain military developments in a particular country . The
articles were based on secret intelligence estimates prepared by CIA.
These estimates were in turn based on intelligence provided by a for-
eign government and a CIA agent who had access to information on
these military developments . Both the foreign government and the
agent recognized the information contained in the newspaper article
as information they provided to the CIA . As a result of this leak,
the agent expressed fear that his collaboration with CIA would be
revealed and the foreign government made a rare formal protest to
CIA.]

Mr. Edwards. The subcommittee will come to order again. We
will have to operate under the 5-minute rule, because we have
quite a number of us here.

Mr. Willard. Mr. Chairman, I think [the NSA witness'] presen-
tation will be somewhat shorter than CIA's presentation.

Mr. Edwards. We welcome you.

150

Mr. Willard. I wanted to mention that [NSA witness] is, as I
said, in charge of NSA's Operations Directorate Intelligence Staff.
He has 30 years of experience in the Signals intelligence and com-
munications security business, having had analytical, technical and
supervisory assignments at NSA Headquarters and overseas, and
[NSA witness] is a member of the Senior Cryptologic Executive
Service.

[NSA Witness.] Madam Chairwoman, Mr. Chairman, distin-
guished members, I hope this is not going to be anticlimatic what I
have to say, but I have some examples for you.

Before getting into the actual examples, I would like to give you
a brief background on NSA and its particular security concerns so
that perhaps that will provide useful perspective for you.

NSA employs a signal intelligence technology known as signals
intelligence, or Sigint. This technique involves the collection of sig-
nals, both radio signals and radar signals, intentional signals and
unintentional signals, both communications and noncommunica-
tions signals.

These are used for the exploitation of these signals to provide
foreign intelligence. Today, Sigint is probably the single most pro-
lific and wide-ranging intelligence discipline employed by the
United States. [Words deleted.]

At the same time, Sigint is very fragile. By that, I mean Sigint
targets can easily deny us continued success. [Words deleted.]

NSA specially understands this fragility because it is also respon-
sible for providing communications security for United States com-
munications, So, we work both sides of the street.

In this role, we are constantly alert to indications that other gov-
ernments are exploiting our communications.

Unfortunately, our principal adversaries don't provide us with
the benefit of their unauthorized disclosure. As is generally true
for all intelligence techniques, the information produced by Sigint
is classified to protect the sources and methods rather than neces-
sarily the information itself.

Because our concern is focused on sources and methods, the un-
authorized disclosure we most fear is the one that attributes the
information to [specific intelligence sources; for example, Sigint].

As several of my examples have demonstrated, disclosing the
source of the information is often gratuitous and serves only to
elicit greater interest in the disclosure.

It tends to take on additional validity when you attribute the
source to Sigint, and that raises the level of validity in the minds
of the people reading or looking at the leaked information.

The five examples of leaks which I will discuss were drawn from
over the past 12 years. They are illustrative of the range of Sigint
success which unauthorized disclosure have compromised.

Many more disclosures have occurred in this period. For exam-
ple, the agency has requested investigation for at least 20 leaks
over the past 5 years. Even in the cases which I have selected, it is
not usually possible to demonstrate conclusively that because of a
particular unauthorized disclosure, a foreign government has im-
proved its communications security.

Let me explain that; that is, that once a disclosure occurs and a
source is compromised, our time is really borrowed at that point.

151

Whether corrective action is taken quickly or is delayed by the ad-
versary, the target knows it has a weakness. [Words deleted.]

Advances in communications and computer technology make it
far easier for even Third World countries to enjoy secure telecom-
munications.

Even if we could recover the source, that process may be time
consuming and excessively expensive, thus driving the cost of our
intelligence efforts higher and higher.

Notwithstanding that these examples that I am going to give you
have already been disclosed in the media, I must emphasize that
my discussion of them is classified top secret.

One of the examples relates to up-to-date signals intelligence,
and its disclosure in particular would compromise the damage al-
ready suffered.

[The NS A witness then provided examples of leaks of signal intel-
ligence information . NSA provided the following summaries of some
of these examples .]

[Example 1 must be deleted in its entirety .

[Example 2: The second example concerns the U.S. intelligence
gathering capability with regard to certain clandestine intelligence
operations of a foreign power. A press disclosure revealing the
nature , , scope and level of success of the foreign intelligence oper-
ation caused the foreign power to tighten its security practices.

[Example 3 must be deleted in its entirety.

[Example 4: The fourth example involves an incident that hap-
pened during a tactical military conflict. Public disclosure of our
effort to provide intelligence support to one of the two opponents
caused the other to take countermeasures to thwart us.

[Example 5: During a period of widespread terrorist activity some
of our intelligence successes in charting the terrorists actions were
leaked in the press. While the source of our information remained ,
the quality of what was reported deteriorated so that there was a
concern about the validity and completeness of the information sub-
sequently received.

[Although not of the same consequence as the other examples ,
there has been a spate of books on Sigint techniques in recent years.
In highlighting the success of certain techniques , these books alert
targets to the need for increased communications security .]

In summation, Sigint is simply no longer the secret that it once
was. Gratuitous disclosure of sources and methods of information is
in large part responsible for discussing just how successful Sigint
can be.

Advanced technology has made good communications security
equipment available to any country that is willing to pay the price
to obtain it.

So you add these two together, awareness plus technology, and
the task of producing quality Sigint on targets of intelligence con-
cern to U.S. national security is becoming more and more difficult
and expensive.

Leaks of the successes we do enjoy only serve to further compli-
cate our task.

I thank you for your kind attention, and if there are any ques-
tions, I will be happy to answer them.

152

Mr. Edwards. Thank you, [NSA witness], and I am going to yield
to Mrs. Schroeder in a moment.

I would like to point out I understand both the CIA and NSA al-
ready have polygraph and preclearance procedures, and yet these
leaks still took place. So, the chief point that we are going to want
to concentrate on is to find out what difference it would have made
on these very serious matters that you have discussed if the Presi-
dential directive had been in place.

Mrs. Schroeder.

Mrs. Schroeder. Well, I want to underline what the chairman
said because that is what we are commissioned to do, to look at
that Presidential directive and see if it really and truly would
make a difference.

I think we are moved by your testimony. Your plea to us to try
and help, we certainly hear.

One of the greatest problems I think we have, from my vantage
point, it is not the professionals as much that are leaking as it is
maybe some of the political people, maybe more in the White
House. I don't really know, but that is the intimation we get, that
to be ingrained in professionals more than it does some-
times in the people who are in the political trade where talk is
their tool, and they talk too much before they realize.

I had heard that [one of the cases you mentioned] the leak

supposedly was by a prominent political person in the White
House. So if that is true, how does the Presidential directive help
that, because it is really geared to the professional and not the po-
liticals that you have to give this top secret information.

Mr. Stein, do you have any response to that?

Mr. . I think, Madam Chairman, I am going to end up

being the one to talk about the directive since I was involved in
preparing it, and the two witnesses from the agencies have not
been involved in the directive directly at all.

I think you are right that the problem tends to be not the career
intelligence professionals in terms of leaks; that is, although there
have been some bad eggs — people like Philip Agee, who caused
great damage — by and large the people who work in the intelli-
gence agencies know how sensitive and fragile the information
they have is. They know how damaging it would be to make disclo-
sure.

I think you are right that it tends to be the intelligence consum-
ers, not the producers, who are the problem; that is, it is the people
at the White House, if you will, or the State Department, or the
Justice Department, who are in policy-type positions, who receive
the intelligence information and don't fully appreciate how sensi-
tive and how damaging it is to disclose it.

They may have their own axe to grind politically. They may
think they are helping the administration when they leak informa-
tion or may think they are shooting down a program they disap-
prove of by leaking information.

That is why the Presidential directive applies across the board.
That has been a source of criticism in a lot of the congressional
hearings, that people have said it is OK, they have these security
measures for intelligence, because that is the kind of people they
are, they deserve to have polygraphs and prepublication review.

153

Mrs. Schroeder. They have already got it.

Mr. Willard. Don't do it to the policymakers at the State De-
partment or the White House because that chills the free flow of
information to the public.

I heard a number of officials, former officials testify, George Ball
testified before the Brooks Committee hearings last fall, other wit-
nesses have said, well, the pernicious thing about that, it applies to
the policymakers, upper echelon, the people who write books and
articles for Foreign Affairs magazine.

But I think for the reasons we have said, that is where the prob-
lem is. As President Kennedy said, the ship of state leaks from the
top, and I am convinced basically on my work in this field for the
last 3 years that is where most, if not all, of the problem is.

Mrs. Schroeder, So, you are telling us that the Presidential di-
rective will apply to everybody in the White House, the President's
very own people?

Mr. Willard. The directive applies, for example, prepublication
review, to everone who has access to SCI.

Mrs. Schroeder. What about polygraphs?

Mr. Willard. That applies to everyone who is involved in an in-
vestigation of classified information, and that could include anyone
at the White House.

Mrs. Schroeder. But the other thing that disturbs me is we are
still talking about chasing down the horse after it got out of the
barn, I really think a very serious problem is that when you bring
the information, when you explain that, have you looked at all at
whether or not when new people come into the White House, there

isn't some way to do this kind of briefing for them to what

they are walking into?

I think 99.9 percent are innocent and then you are going to go
around and track them all down, but it is gone and it is already
costing the taxpayers money.

Mr. Willard. I agree that the best thing to do is to keep the
horse in the barn. That is one reason we have the prepublication
review system.

Some critics have said if people disclose classified information,
prosecute them under the Espionage Act. That is the horse out of
the barn.

Mrs. Schroeder. The prepublication is for somebody who is going
to write a book, what about Secretary of State Kissinger, who talks
to the press 24 hours a day? You cannot prepublication review Mr,
Kissinger.

Mr. Willard. I understand the problem of the verbal leaks,
someone who talks to the press is very serious, and it is not solved
by prepublication review. There is to some extent a difference
when things appear in print in books by former officials. That gives
it more authority.

When things leak out anonymously from the press, sometimes
you don't know whether they are true or not. I have learned that
not everything you see reported in the newspapers is true.

Mrs. Schroeder. I think part of it is we heard clearly the kind
that came out.

Mr. Willard. That certainly is true. That is where I think that
prepublication review can help. We have tried to make an effort in

154

the last few years to improve the security awareness program for
senior officials in terms of giving them a briefing like this.

The SCI gave a briefing within the last year to the Cabinet, in
the Cat inet room, exactly like this, and someone leaked the details
about tl e briefing to the press,

Now, C agree that we need to do a better job on security aware-
ness. In my view, the problem is a seamless web. You have to
attack all sides of it, You have to have good protective security;
that is, documents have to be kept safe, you have to do a good job
on clearance and background investigations and make sure the
right people get access.

You have to do a good job on security awareness. Then you have
to be able to have a deterrent impact when people do leak or make
an unauthorized disclosure something has had to happen.

Mrs. Schroeder. I also worry about contractors. I sit on Armed
Services — I notice you nodding — and I think when we talk about
this magazine, the Soviets can’t wait to get their hands on it, and a
lot of that is beyond anything you are talking about.

Mr. Willard. Well, the directive applies to contractors as well.
For example, prepublication review would apply to contractors who
have access to SCI.

Mrs. Schroeder. They talk. They don’t write. Martin Marietta
doesn’t write the article to submit it.

Mr. Stein. May I say a word about leaving prepublication review
aside and say a word about something I shouldn’t; namely, the use
of the polygraph, having lived a life of being aware of the poly-
graph.

I think the knowledge that the polygraph can be used in investi-
gating a leak will have a deterrent effect. I do that on the basis of
my experience not only with staff officials of CIA, but also with our
agents overseas.

The knowledge that someone, and the fear of the polygraph is
enough to keep people from — I think it might cause them to mind
their P’s and Q’s. I don’t think that NSDD says that with the use
of polygraphs we are going to catch everybody who leaks every-
thing, but it certainly will cause someone to have second thoughts,
the thought that an investigation could include the use of the poly-
graph. The reason is essentially the American public in general is
afraid of the polygraph.

Mr. Edwards. Mr. Pashayan.

Mr. Pashayan. I have the impression that the directive might
not block all the leaks but that it will block up some of them. We
have had two or three examples of printed materials, primarily
had they been submitted, the information would have been sifted
out.

I would like to get your judgment on this. Of a hypothetical 100
leaks, how many do you think the Presidential directive would pre-
vent?

Mr. Willard. Mr. Pashayan, it is hard to say. I think if we can
reduce the number of leaks by 10 or 20 percent even, then that will
be, I think, a significant victory because what we have had up to
now is a problem that is becoming increasingly out of control with
no end in sight.

155

If we could turn the corner, so to speak — that is, to have leaks
becoming less of a problem every year rather than more of a prob-
lem — that would be a significant accomplishment.

Mr. Pashayan. You feel polygraph and prepublication review
would achieve that?

Mr. Willard. I think that is one way to achieve it. I am not here
to say NSDD-84 is the only solution to the problem; maybe not the
best solution. In fact, I seriously regret this has become such a con-
troversial and political issue over the last year.

We would like to find a way to solve the problem that is not con-
troversial that doesn’t cause us to have to come up and have hear-
ings every couple of months to be denounced as people who want to
squelch the first amendment and terrorize Government employees.

I don’t like being called the John Dean of the Reagan adminis-
tration by William Safire. If there is a better solution to the prob-
lem, we would like to hear it. If there is a different solution to the
problem, we would be willing to consider it.

Mr. Stein. You asked for judgmental, and I would answer the
same way. I don’t know how many of these 100 would be stopped
by the polygraph. I do ‘know that somehow one has to restore some
degree, and a big degree I would hope, of discipline, and I do know
that the polygraph has a deterrent effect.

Mr. Pashayan. Let me ask you this question.

Mr. Stein. If I may, I think slightly amusing, I had two tickets, I
am an avid Redskin fan.

Mr. Pashayan. I am a Raider fan.

Mr. Stein. You are better off than I am this year. I had two tick-
ets to the Superbowl. Someone said, why don’t you go. I said I

could if I could find a way the polygraph next time around,

and he giggled and said, the only way I could figure to get there
was to misuse government property, misuse an agency airplane
and boat to get there. In fact, it was on my mind. I could have mis-
used my position to get someone to fly me down there.

Mr. Pashayan. Well

Mr. Stein. That is what I mean by the deterrent. There is a de-
terrent effect.

Mr. Pashayan. Despite the fact it is no secret what the Raiders
did to the Redskins, let me ask you this. Your employees now at
CIA all are subject to the polygraph, are they?

Mr. Stein. On entrance, yes, sir, and periodically.

Mr. Pashayan. Do you feel that that has had an effect on the
ability of the agency to control the information?

Mr. Stein. I do indeed.

Mr. Pashayan. Talk about that.

Mr. Stein. I am not really competent to talk about it because I
am not in the Office of Security and don’t see the totality of it. But
I can give you some examples of things that have happened be-
cause of the polygraph.

We had some very sensitive documents that had to be translated.
We sought translation assistance from the Defense Department.
They sent a gentleman to do those translations. On the polygraph
he indicated he had been in touch with a foreign intelligence serv-
ice. He was to start with us, but after this revelation, he had to

156

leave. I don’t know whatever happened to the case, but he went
back to the military and was unemployed.

I know of the 250,000 applications that we get per year, and of
the 60,000-odd who are asked to send in resumes, it very quickly
gets from the 60,000 down to the 2,000 that we employ.

On entrance now there are — I am not suggesting in our case— we
also test for lifestyle, lifestyle or security or pot or what have you,
or drugs. The polygraph does a great deal of this weeding out, not
just polygraph, but it is an excellent investigative tool in large
measure because the Americans who are tested on the polygraph
react.

Mr. Pasha yan. Are you saying Americans?

Mr. Stein. Well, polygraph works less well with [certain cul-
tures].

Mr. Pashayan. Really?

Mr. Stein. It works less well in a culture where — and here I am
getting out of my depth. I don’t know the totality of the Office of
Security holdings, but my own personal experience has been that
the polygraph works less well with [certain ethnic groups], for ex-
ample, who are in a culture where telling someone what you think
they want to know is an accepted norm. Lying is not accepted in
the United States and, therefore, the polygraph works somewhat
better.

Mr. Edwards. Mr. Kastenmeier

Mr. Kastenmeier. Mr. Chairman, I have a question, but I would
like to hold back since I had an opportunity

Mr. Edwards. Mr. DeWine.

Mr. DeWine. No questions.

Mr. Edwards. Mr. Gekas.

Mr. Gekas. No questions.

Mr. Edwards. Mr. Wolf.

Mr. Wolf. Thank you. I want to thank you for your testimony. I
think you have made a very compelling point as to the problem
and seem very willing to be open as to solutions. I would just like
to second or agree with what Mrs. Schroeder said with regard to —
maybe it isn’t often that I agree with what Mrs. Schroeder says,
but on this point about the political appointees being sensitive per-
haps you could demonstrate within the administration, then — I
worked for a Cabinet officer for a number of years, for 5 years.
During that period of time, nobody ever came over and really em-
phasized the security matters.

Perhaps the administration could bring in all the political ap-
pointees and schedule C's and people like that to give them this
type of briefing to indicate how important this was to be sensitive
to national security.

I think that would demonstrate on your part Mrs. Schroeder’s le-
gitimate concern that many times you do have a Mr. Kissinger or
someone else like that who feels they are above it and they can
speak whenever they want to without being punished, whereas an
employee or a career person would be very hesitant to do that be-
cause of all the inhibitions built in.

So, I would encourage you to take her comment at heart and
maybe ask the President or somebody like that to bring all the po-
litical appointees together to make this point, the way I think you

157

have done it today, and to sort of stigmatize these political appoint-
ees that that would be frowned upon if they do that, and looked
down upon.

Then I guess the real ultimate test is when this administration
finds somebody who is a political appointee who abuses that, that
they act quickly and perhaps even by reprimand or by firing that
person.

Again, I thank you very much.

Mr. Willard. If I could respond to that, where we have caught
people in this administration, we have taken decisive action. A po-
litical appointee was fired by the President about a week after he
publicly disclosed information about a confidential CIA relation-
ship with [foreign government official].

There have been at least one or two other instances that I know
of not by name where individuaJs have been allowed to resign after
these disclosures had been determined.

Now, in my view I think there should be a public pillaring of
these people for the deterrent effect. However, there are also secu-
rity concerns for the very reason that our examples are classified.
It is difficult for us. For example, I have never publicly acknowl-
edged the firing of this [appointee] as being because of a particular
leak because that confirms the accuracy of the information that he
disclosed.

It would be similar to my stating that this particular [foreign] of-
ficial had a relationship with the CIA. So, we have this tension be-
tween the desire to create a deterrent impact, which we want to,
and the need to continue to try to protect that confidential rela-
tionship. But where we have been able to catch people, we have
done that.

In terms of security awareness, in addition to the Cabinet level
briefings that the DCI gave that I mentioned, the CIA has put to-
gether a program of briefings on this damage, giving some of these
kinds of examples, not quite as high level a classification as this,
but still a top secret, code word level briefing that has gone around
to the top officials of the various departments.

When I came to the Department of Justice, for example, the At-
torney General sent an invitation to the top officials to attend.
They did attend. They had a videotaped presentation from the DCI
included, as well as a briefing.

Finally, on August 30 of last year, the President sent out a letter,
a memorandum to all Federal employees on unauthorized disclo-
sure, to my knowledge the first time any President has ever taken
this step, a two-page memo in which he reiterated his concern.

So, we have been trying to emphasize protective security. We
don’t come to the polygraph because it is our idea that ought to be
our first tool of defense. If is really sort of the last resort in these
cases.

But it is one that we have felt is necessary if we are going to
make some progress in solving the cases, but the real frustration
here is that 99 percent of leaked cases are never solved and can’t
be solved by any reasonable investigative method, and I could ex-
plain in some way why that is the case.

But until we can do a better job of catching people, then we are
going to have a hard time adding the stick. We can use the carrot,

33-307 0-84 6

158

we have been trying to use the carrot, but the problem is so serious
we have to try to have a stick there, too.

Mr. Pashayan. You mean that under the Presidential directive
that Ed Meese would be subject to the polygraph?

Mr. Willard. That is correct, Mr. Pashayan.

Mr. Edwards. I suppose that the disclosures made by the Justice
Department after the 007 tragedy included more releases of classi-
fied information than I can remember in my two decades here.

I am sure that it was very distressing that everyone in the world
learned as much as they did about what was going on in the skies
over that island. I don't know how you can resolve that. When you
get politics into something where a Democrat or Republican is con-
cerned, politics are very important and perhaps security will suffer.

Mr. Stein, did polygraph examinations solve any of the serious
leaks that you described?

Mr. Stein. In one of the cases that I described, for members only,
the fear of the polygraph kept the gentleman from trying to get re-
hired by the agency. He told his folks that he was not about to go
through that. He could not pass it. In that case, it has a deterrent
effect only.

There are examples that I have in my head which were not de-
scribed in the hearing, or either of these hearings, of leaks in the
sense of inadvertent or willful revelation of classified material to
unauthorized recipients. Yes, sir, that happens within the agency
by use of polygraph, yes, sir, it does, but none of those were de-
scribed in our testimony, in my testimony. [Words deleted.]

Mr. Edwards. Maybe the Russians knew about it. I assure you I
didn't know what was going on over there to the extent that it was.

Mr. Willard. Mr. Chairman, I would also like to add that we
have always recognized that the President or other designated offi-
cials have the authority to declassify information that otherwise
properly could be classified in the overall national interest.

In a situation like this, a conscious decision was made to release
some information that was otherwise classified because it was felt
that would further U.S. foreign policy interests by bringing to bear
world opinion in the incident with regard to the Soviet Union's
conduct.

That is the kind of judgment that sometimes has to be made in
the overall interest of national security, and that is a part of, in
our view, the constitutional authority of the President to make
those kinds of decisions.

Can that power be abused? Certainly it can. If so, the President
should be held politically accountable if he declassifies and releases
information for partisan political purposes rather than because it
is in the overall national interest.

I know there were during the last administration accusations
made about the release of information about the Stealth bomber
program, and I think there was a political fallout from that.

The point is that there is nothing illegitimate about declassifying
information if it serves an overall national purpose as long as that
is made on a good faith basis. But the decision ought to be one of
proper authority to make the President or other designated offi-
cials and not anyone in the Government who happens to have

159

access to information to appoint himself as the declassifying au-
thority.

Mr. Stein. To reinforce that point, we are in constant negotia-
tion with the State Department in the sense that diplomatic de-
marches, what can an ambassador say to the government are often-
times based upon intelligence information, what we know from in-
telligence.

We are in constant negotiation with the State Department on
various issues, rewriting the material, sanitizing it, downgrading it,
so it can be used as pointed out. That is a very legitimate function
of the foreign policy establishment.

Mr. Edwards. Well, thank you.

My last question really has to do with the polygraph again. I can
see the intimidation value. I think that is the stronger point you
have made.

With regard to the polygraph, I was talking to some Foreign
Service officers one evening — and they said they would quit before
they would be strapped into a polygraph apparatus because they
viewed themselves as highly qualified professionals and so forth
and so on.

But, Mr. Stein, I am interested in [a certain individual], you
know my connection with [this individual] goes back a long time,
and I was wondering why he couldn't have brought in — I don't ask
you to confirm or deny his connection with the CIA, [ words deleted ]
we have been through that with the CIA.

Let's assume that [he] was a CIA employee at one time, why
couldn't he be asked to submit to a polygraph test and say where
did you this information?

Mr. Stein. Well, had he been an employee at one time, and had
he retired or resigned and so forth

Mr. Edwards. He would have been subject.

Mr. Stein. He is not subject.

Mr. Edwards. He is subject, Mr. Snepp was subject.

Mr. Stein. Mr. Snepp was subject to the polygraph before resig-
nation.

Mr. Edwards. He was subject to preclearance.

Mr. Stein. Once he resigned [he] is not subject.

Mr. Edwards. Preclearance he would be like Mr. Snepp?

Mr. Stein. Preclearance. [I am not aware he ever was.]

Mr. Edwards. [I am not saying he was.] So perhaps assuming
what I said is true, he should have prepared that article. Well, how
about [the former military official] why didn’t he preclear?

Mr. Willard. The [former military officer] is one who was not
subject to a prepublication review requirement because he was not
CIA or NSA. He falls in the category of people who would be cov-
ered under the new directive as someone who has access to SCI. At
the time he was in, the military prepublication requirement was
limited to NSA and CIA and did not apply to him.

In fact, I understand he was asked specifically by the Depart-
ment of Defense to submit his book for review and refused to do so,
claiming he had not signed an agreement.

Mr. Stein. Mr. Chairman, also [the man you are discussing is a
foreign national] which makes it even less likely.

160

Mr. Kastenmeier. Actually, I do not know that I have any ques-
tions. Some of the questions have cleared up concerns I had about
people, officials in the highest level, with regard to someone at
such a level being able, as a matter of judgment, disregarding what
otherwise would be a directive to the contary to, in their judgment,
make statements with respect to U.S. policy and possibly by impli-
cations run afoul of what for others might have been an impedi-
ment.

But I think the discussion was somewhat on this purpose. I do
think that there is a question of competing values sometimes.

[Mr. Kastenmeier then proceeded to discuss a case involving a
conflict between criminal prosecution and intelligence.']

Mr, Willard. I agree, Mr. Kastenmeier, and in fact our Criminal
Division is frequently, I will not say at odds, frequently has lengthy
discussions with the intelligence community about particular crimi-
nal cases.

I am not saying who is right or who is wrong, whether we should
have prosecuted or investigated the case or not, but I think, as in-
dicated, the mistake [that some employees make is that once they
are] frustrated because they do not get their way internally within
the government, they go public to the newspapers with the infor-
mation about that confidential intelligence relationship.

Mr. Stein is more qualified, but not everyone we do business with
around the world is a Boy Scout. Some people are involved in unsa-
vory activities, and yet it is essential to be able to promise confi-
dentiality in order to obtain cooperation, which may be vital for
the national interest.

If the concern were if anyone is ever accused of an illegal activi-
ty around the world, who has ever cooperated with the CIA, that
that relationship would be made public, it may be a lot harder for
us to get people to cooperate.

Mr. Kastenmeier, Thank you, Mr. Chairman.

Mr. Edwards. Thank you very much. I am relieved that the
Brooks’ bill has not been assigned to the subcommittee I chair and
it will be in the skilled hands of Chairwoman Schroeder, Mr. Wolf,
and Mr. Pashayan, and the rest of them.

Mrs. Schroeder. We will let you come to testify, Mr. Chairman,

Mr. Edwards. On the 31st of March.

Thank you very much. We really appreciate your coming here
today. It has been very helpful to us, and there will not be any
leaks out of these two subcommittees.

[Whereupon, at 11:45 a.m., the hearing was adjourned.]

APPENDIXES

Appendix 1.— “The CIA and the Cult of Intelligence/’ by Ralph McGehee

APPENDIX.— THIS BOOK AND THE SECRECY AGREEMENT

The secrecy agreement that I signed when I joined the CIA allows the Agency to
review prior to publication all writings of present and former employees to ensure
that classified information relating to national security is not revealed. This provi-
sion seems logical and necessary to protect legitimate secrets. However, my experi-
ences in getting this book approved show that the CIA uses the agreement not so
much to protect national security as to prevent revelations and criticisms of its im-
moral, illegal, and ineffective operations. To that end, it uses all possible maneu-
vers, legal and illegal. Had I not been represented by my attorney, Mark Lynch of
the American Civil Liberties Union (ACLU), and had I not developed a massive
catalogue of information already cleared by the Agency’s publications review board
(PRB), this book could not have been published. The review of my manuscript came
in two basic stages, first on an initial manuscript that I wrote without editorial as-
sistance, and second on a revised manuscript written following an editor’s advice.

On February 26, 1980, I submitted the first version of the manuscript to the
Agency for review and on March 21, several days before the mandatory 30-day
review period expired, John Peyton, a lawyer of the Agency’s general counsel staff
who served concurrently as the PRB’s legal adviser, called and asked that I come to
a meeting on March 26. He moaned audibly when I advised him that Mark Lynch of
the ACLU would accompany me to the meeting. At the meeting, held in the general
counsel’s office on the seventh floor of the Headquarters building in Langley, the
government's side was represented by five attorneys— three from the general coun-
sel’s office and two from the Justice Department. Had I come to the meeting alone, I
would have been the lamb ready for slaughter. Because of his participation in other
sensitive Agency cases, Lynch had earlier been granted a high-level “Q” clearance,
but even so the Agency required him to sign an agreement before he could partici-
pate in that meeting. Peyton then explained that the publications review board had
made 397 deletions in my manuscript. I was surprised, because I had been extreme-
ly careful not to use classified information in the manuscript. Those 397 deletions
exceeded even the 339 passages excised from The CIA and the Cult of Intelligence, a
book by John Marks and Victor Marchetti that deliberately set out to expose
Agency secrets. I later learned that the 397 deletions represented only a fraction of
those initially demanded by the Agency’s Directorate for Operations, When I noti-
fied Peyton that I would be represented by the ACLU, the Agency had quickly re-
tracted its more capricious deletions, resulting in the final list of 397 items.

Lynch suggested that he and I first be permitted to adjourn to a private room to
review each item. When we finished the review, the full group reconvened. I said
that almost all deletions appeared in some form in the Pentagon Papers . Ernest
Mayerfeld, deputy general counsel, said if that was true he could not object to their
inclusion in the book. The lawyers said that I should get together the next day with
the Agency’s freedom of information officer, Bob, to consider specific deletions.

After lunch and later at home I reviewed the Agency's deletions and matched
each item with my source documents. I was overjoyed: all significant deletions were
covered by supporting public data. My joy was premature.

Early the next day I met Bob, who during my last few years with the Agency had
served as my boss once removed. A dedicated cold warrior, Bob was a tall, stocky,
impressive man in his late fifties who had achieved supergrade status in the Agency
and had served as chief of station [19 words deleted].

Bob seemed as agitated as I, and it was obvious that he felt he was soiling himself
by dealing with me. In less civilized circumstances we probably would have been
happier fighting rather than talking. Early on Bob set the tone. “It’s too bad you
didn’t work for the Israeli intelligence service,’’ he said. “They know how to deal
with people like you. They’/, take you out and shoot you.”

(161)

Bob then launched into a long monologue covering the vagaries of the secrecy
laws, including details of the Carter administration's Official Disclosure Law, the
Freedom of Information Act, and the various problems in their application. I impa-
tiently endured this speech. I was most anxious to get on with the review, to
produce my public documents, and to get the hell out of there.

We finally moved to the review of the specific deletions. The very first item
caused trouble. Inexplicably the publications review board had deleted a reference
indicating that the CIA conducted joint operations with Thai authorities. That rela-
tionship was so well known that books had been written about it, academic studies
discussed it, pictures of CIA station chiefs appeared in the Thai press, and high-level
Thai officials openly bragged in the media about CIA support for their organiza-
tions. Needless to say, I had not anticipated that the CIA would consider that rela-
tionship secret. If I could not admit that such a relationship existed, there was no
point to the book since most of my observations were based on my six years with
the Agency in Thailand^ Fortunately I recalled a document from The New York
Times edition of the Pentagon Papers entitled “The Lansdale Memorandum for
Taylor on Unconventional Warfare," which discussed specific CIA operations con-
ducted jointly with Thai organizations.

When I told Bob about the Lansdale memorandum being in the Pentagon -Papers,
he appeared to be surprised. But he recovered quickly and said there was only one
official version of the papers — the Department of Defense's 12-vofume editions.
After numerous phone calls, a secretary brought in 11 of the volumes— the one
missing volume, according to the index, was the one that most likely would include
the Lansdale memo. This really shook Bob. He suspected that someone had removed
the critical volume. Later we did get that volume, but the Lansdale memo was not
in it. I argued that the Supreme Court's decision in the Pentagon Papers case had
placed that information in the public domain, and it certainly could no longer be
considered secret. We argued back and forth and finally agreed to postpone deci-
sions on this and other items relating to CIA joint operations with Thai organiza-
tions.

Many deletions caused little problem. In some cases, where an ex-CIA official’s
affiliation with the Agency was well known, I had used that person's true name.
The Agency objected. I felt the point was unimportant and agreed to substitute
titles or aliases.

At one point I really became worried. Bob said that I must produce the document
from which I had taken a direct quote. If I could not produce it, he warned that I
would be accused of stealing secret documents. I had not deigned to steal any of the
Agency's classified fantasy, but I was not sure that I could relocate that precise
quote. Luck was with me that day, and a short scan of the research materials I had
brought with me produced that quoted passage.

We referred the question of joint operations with the Thai police to the general
counsel's office, which conceded that such information was probably not deletable.
We continued our review based on the premise that I could discuss joint intelligence
and counterinsurgency programs with the Thais. Even so, I could not mention my
participation in programs with specifically named Thai organizations although I
could substitute phrases to describe them. Also I was allowed, via footnoting, to re-
place a deleted item with information from a source document. By juxtaposition I
hoped my meaning would be clear.

The next day I objected to the deletion of my very negative assessment of the
Agency’s long-term operations against mainland China. I produced a book, Sub
Rosa, in which a former Hong Kong station chief, Peer de Silva, set forth his own
lengthy, negative evaluation of those operations. I said Peer's book had been ap-
proved by the PRB and it had permitted him to state his opinion; therefore, I should
be given the same privilege. Bob agreed and my critical comments, in modified ver-
sion, were reinstated. From that point on I searched through books written by
former Agency officials and cleared by the CIA, to locate items similar to deletions
made in my book. By this tactic I was successful in reinstating numerous deletions.

We had a problem over naming specific CIA stations and bases — other than those
already acknowledged— even though those installations were well known. The Agen-
cy's objection had nothing to do with secrecy. It instead applied to administering the
Freedom of Information Act. Whenever the Agency acknowledged the existence of a
station or base, the public could, under the act, demand documents relating to the
facility. Although it seldom releases documents in response to such appeals, the
Agency must by law physically check all such documents. By not allowing anyone to
admit that a station or base exists, it avoids those requests.

Bob and I agreed to a modified version of my book. That weekend I made all the
changes. On Monday moring I reviewed those changes with Mark Lynch and sub-

163

mitted the book to the deputy general counsel, Mayerfeld. In the interim Mayer-
feld ’s office had reversed itself. He said The New York Times’ Pentagon Papers had
not been officially released, that the Supreme Court only ruled that it could not
enjoin publication of those documents. Therefore, my discussion of liaison programs
with Thai organizations might again encounter opposition.

That night I searched through the edition of the Pentagon Papers that Senator
Mike Gravel of Alaska had entered in the official records of the Senate. I found that
it included the Lansdale memorandum and therefore supposed that that constituted
official disclosure. The next morning I happily relayed the news to Bob. He said
members of Congress could say anything, so the Gravel edition did not count. Offi-
cial disclosure only occurs when a member of the executive branch of government
performs that function. But how finely the Agency interpreted that statement I was
yet to find out.

I immediately went to the Reston Regional Library to look for statements made
by members of the executive branch relating to CIA operations with Thai organiza-
tions. I spent the day going through The New York Times Index, reviewing all en-
tries under Thailand from the present back to 1954. The index mentioned one well-
publicized incident, allegedly caused by the CIA, that generated riots in Thailand.
Because of the furor, numerous American officials were forced to comment on CIA
operations in Thailand. Some press accounts sourced their information to CIA offi-
cials in Langley and the Lfnited States Embassy. I felt those references constituted
executive branch disclosure of CIA activities in Thailand. I called Bob. Pie asked if
the articles named specific American officials-— a mere reference to a CIA official in
Langley did not count. I said that Ambassador William Kinter had made a state-
ment. He asked if the statement was in quotes. Pie said reporters could write any-
thing, and if the statement was not in quotes it did not constitute official disclosure.
(Later after completing the review process I found a reference to a high-level CIA
official making a direct statement concerning CIA operations in Thailand. I called
Bob and asked if that did not constitute that ever-elusive official disclosure. He said
no. That person had probably spoken unofficially and could be prosecuted for violat-
ing his secrecy agreement.) But as I continued to accumulate public evidence of the
CIA’s relationship with Thai organizations, Bob began to concede that I might
retain relevant items in my book.

On Tuesday, April 8, I went to the Agency to rework the items deleted from my
resubmitted version. I was not surprised to see that the Directorate for Operations
had reversed itself in several key areas. Where its original deletions did not hold up,
it merely changed its objections to apply to previously approved information.

China desk had changed its objection to my negative evaluation of its operations.
The desk now claimed that the technique itself was classified. That technique, re-
cruiting persons from the other side, was just slightly newer and less well known
than prostitution. Of course if I could not discuss the technique, my evaluation
would be meaningless. That night I went back to the Reston Library and cleaned
out its shelf of books written by ex- Agency officials. Those books, some undoubtedly
written at the behest of the CIA, discussed that “forbidden” technique in detail. By
adding footnotes to those books, I was allowed to retain my discussion of that tech-
nique.

The Thai desk had also changed its position on material not initially marked for
deletion — namely, the rural village survey program that I directed with Thai offi-
cials. The desk’s original objection pertained only to my mention of working in liai-
son with Thais. When it became apparent it could not maintain that objection, the
desk then claimed the technique itself was classified and must be deleted. This was
ridiculous. Over the years I had lectured and passed out unclassified handouts de-
scribing the method. When documents reporting on those training sessions were lo-
cated, the Thai desk had to drop its objection.

Forty-six days after I submitted the book, the Agency returned the manuscript
with a letter saying that it had no security objections to the publication of that ver-
sion. Throughout the review one central issue had been in question: reference to
CIA operations with Thai organizations. What terrible secret was the CIA so vehe-
mently attempting to hide? On October 6, 1976, Thai security forces overthrew the
civilian, democratically elected government in a violent bloodbath. A study by Dr. E.
Thadeus Flood published by the Indochina Resource Center said of that bloodbath:
“This activist agency [CIA] took the lead in developing a strong apparatus in
Thailand, ... It should be mentioned that in their training, the CIA placed special
stress on the Thai Border Patrol Police (BPP). News reports from Bangkok during
and after the recent coup indicate that it was the Thai BPP who levelled their
heavy weapons at unarmed Thai students, boys and girls, waving white flags, and
raked them with fire.”

164

Thomas Lobe describes what happened in more detail: “Op that horrible day in
October 1976, then the CIA/OPS-trained Border Patrol Police, with some units of
the OPS-trained riot squads of the Metropolitan Police, burst into Thammasat Uni-
versity to crush the unarmed students and their fury knew no bounds ... in
meting out humiliations, in mutilizations brutally inflicted, in burning a student
alive, and in simple wholesale murder. Thousands of unarmed students were killed,
injured, or arrested, and a few days later, most of the liberal to left journalists,
scholars, and intellectuals were also rounded up and put in prison or ‘rehabilitation
camps/ "

After receiving the approved version of the manuscript, I signed a contract with a
publisher who wanted extensive rewrites.

I began rewriting the manuscript and submitting each chapter as it was complet-
ed. On February 4, 1982, Paul Schilling, a young lawyer on the general counsel’s
staff, called and asked me to come to the Agency the next day for a meeting to dis-
cuss the first chapter. I was annoyed because everything in the chapter had either
been approved before, was quoted from the Senate’s Church Committee report, or
was personal. I prepared myself with documents and met with Paul in one of the
little anterooms off the main reception area. Some of the objections were to infor-
mation that the Agency had declassified and released to the Church Committee,
which I easily documented. But the other objections concerned details of my train-
ing in espionage and paramilitary operations and details of psychological tests the
Agency uses to help identify a specific personality type for possible employment. I
was not prepared to rebut those arguments. Paul and I agreed that I would return
home and call in the appropriate references.

The rest of the day I phoned around to all Fairfax County libraries to get copies
of books by William Colby, Ray Cline, Allen Dulles, Lyman Kirkpatrick, David Phil-
lips, and other pro-Agency authors whose works had received formal CIA approval
if not sponsorship. Almost all discussed information that the PRB now claimed was
classifed. I phoned the citations in to Paul Schilling. I thought that would take care
of the matter. A few days later Paul called and asked if I would come in for another
meeting. On February 11 we met again in one of the cubbyholes off the packed
main reception area. Paul apologized for asking me in again and said that the PRB
has agreed that the information I had taken from the Church Committee report was
not classified. I relaxed. The PRB was merely recognizing reality.

Paul then said, "But the other material on your training and the psychological
test is classified. The board said it had made a mistake earlier when it had approved
that information/*

To the shock of the people in the reception area I bellowed, "That’s tough shit. It
can’t reclassify information." After calming down, I pointed out that the Agency
had cleared similar information on training for its friendly former officers such as
Colby, Phillips, Cline, Dulles, Kirkpatrick, and others.

"Yes," Paul said, “but the PRB made mistakes."

I noted that in at least one case the CIA had helped a former officer write his
book, and the book contained numerous references to training.

Paul responded, "The Agency’s relationship with an author is that the PRB re-
views material written by the author, nothing else."

"That's not the case with [the book in question]. It was written as a covert action
project by the Agency. I know it was."

Paul continued, "That Agency’s relationship with an author. . . /’

I then cited facts relating to the writing of that book.

Paul retorted, "The Agency’s relationship with an author. . .

Schilling recommended that I consider an appeal to the deputy director of the
CIA, Admiral Bobby Inman.

That weekend I called Paul at home and advised him that Executive Order 12065
on classification, Section 1-607, reads: “Classification may not be restored to a docu-
ment already declassified and released to the public under this order or prior
orders." Paul said, "Oh, we’re operating under a new order." What Paul was refer-
ring to was a draft executive order then being proposed by the Reagan Administra-
tion. That order, only later put into effect, allows officials to reclassify information
previously declassified and disclosed if it is determined in writing "that the informa-
tion requires protection in the interest of national security and if the information
may be reasonably recovered." The manuscript obviously could not be "reasonably
recovered," since I had sent copies to my publisher, my editor, and numerous others.

Paul quickly realized he had jumped the gun on the new executive order and
shifted instead to the position that Agency officials had again and again made mis-
takes in declassifying information in my original manuscript and in other books.

165

After consultation with Mark Lynch, I prepared and submitted ray 35-page appeal
on February 19, 1982, noting that many of the delected items had been approved in
the first manuscript, had appeared in the approved writings of other pro-Agency of-
ficers, or were available in numerous other publications. On March 12, 1982, I re-
ceived a letter from the general counsel's office saying, “The DDCI [deputy director
of central intelligence] has reversed the board with respect to all , . . passages con-
tested in the appeals,” except that, “the DDCI has upheld the board f s decision to
delete five sentences . . . unless Mr. McGehee can show the Agency has previously
cleared such information.”

I immediately scanned four approved books and found 24 references to equivalent
or identical material as contained in the five sentences. I sent these references to
the general counsel. The PRB acted quickly and, rather embarrassed, acknowledged
that my five sentences were not classified.

I thought, well, now I have been vindicated and my problems are over. But this
was not to be. On March 23, I received another letter informing me that chapter
two was so sensitive that it was impossible to identify specific items and the PRB
had rejected the entire chapter. I had had enough and contacted George Lardner,
Jr., a journalist with The Washington Post. He wrote a long article entitled “CIA
Veteran Decries Effort to Reclassify Material for His Book.” This public embarrass-
ment forced the Agency to reconsider its actions. On April 29, I received a regis-
tered letter offering me the services of Bob — my old antagonist — to work together to
produce an approved version of the manuscript.

I accepted the offer. We held three long sessions at my office, so we would have
instant access to my books and files. The battle over chapter one had been complet-
ed, so we concentrated on the remaining chapters that I had turned over in the pre-
ceding months. Chapter two, dealing with my tours in Japan and the Philippines,
according to the earlier PRB decisions could not be used, but in the interim I had
stumbled upon one of the lesser-known books by ex-CIA officials, Howard Hunt’s
Undercover. In it, to my joy, was a chapter dealing with his assignment as a case
officer to Japan; the same chapter also discussed the Agency’s base at Subic Bay in
the Philippines. His book had been approved by the Agency and when I pointed this
out to Bob he agreed that I should also be permitted to discuss my activities in those
countries. Even so, I was not allowed to include details of my work. I could only give
information no more explicit than that given in Undercover.

Chapter three also presented major problems. Many of my special designations for
places were deemed classified, but by making minor changes I was allowed to retain
some points. The discussions of my work at Headquarters processing clearances and
file tracers were marked classified and many sentences had to be deleted. Although
the Marchetti-Marks and Colby books had discussed the requirements for clearances
and traces, they had not gone into details. Unable to locate other coverage of these
procedures, I could not retain my material. But I was allowed to quote information
on that topic given in Philip Agee’s book, Inside the Company.

Chapter four, about my tour on Taiwan, gave information in general terms of an
agent operation directed at mainland China. Someone had objected to this major
element of the chapter. I protested that other approved Agency authors had been
allowed to discuss agent operations, some with a great deal more specificity than my
account. This argument was finally accepted.

Bob and I reviewed each of the many points in the remaining chapters. In this
process I conceded a number of points where the law was clearly on my side. I did
this to speed the clearance process and to avoid a long, time-consuming lawsuit.

John Marks and Victor Marchetti’s book The CIA and the Cult of Intelligence,
published in 1974, was the last approved critical book written about the Agency by
an ex-employee. In light of my own experiences the reason is obvious: the secrecy
agreement and the way it is abused by the Agency. It is virtually impossible to
write in an atmosphere where everything is secret until it is deemed otherwise. The
PRB, taking its responsibilities seriously, labels just about everything secret until
an author who is critical of the Agency can prove this not to be the case. But the
situation for ex-employees who are advocates of the CIA is the opposite. They are
given almost carte blanche to discuss operations and techniques, and in some in-
stances they are assisted in the research and writing of their works.

Does the secrecy agreement work to protect legitimate classified information?
Probably to some small degree it does. But the price we pay for this minor protec-
tion is enormous. The Vietnam War is a prime example. This Agency-produced dis-
aster was sold to the American people through massive disinformation operations.
Would it not have been better if we had known the truth at an early stage? Similar-
ly, would the American people not be better off knowing the truth about the CIA’s
current secret war in Latin America? Don’t we deserve to know about reckless and

166

phony covert operations, including Agency-planted “Communist” documents, that
help determine our foreign policy?

It is clear that the secrecy agreement does not halt the flow of information to our
enemies, for it does not affect the CIA employee who sells information. Look, for
example, at England, which has a strict official secrets act and probably the most
porous security service in the western world. What the CIA’s secrecy agreement
does quite effectively, however, is to stop critics of the Agency from explaining to
the American public what the CIA is and does. It is sad to say, but the truth is that
the primary purpose of the secrecy agreement is to suppress information that the
American people are legitimately^ entitled to* For this reason, I am opposed to the
secrecy agreement as it is now written and administered.

Because the major portion of my CIA career revolved around Southeast Asia,
where CIA operations were well publicized and even officially disclosed, the Agency
could not stop release of much of the information in this book. But my experience
should sound a warning. Agency officials show no hesitation in trying to censor em-
barrassing, critical, or merely annoying information. I cannot speak for the legal
aspects of the various laws, but it is obvious that national security has little to do
with how the Agency administers the secrecy agreement. As the CIA becomes more
adept at applying the law under President Reagan's executive order on classifica-
tion that went into effect August 1, 1982, all critical information about the Agency
will probably be forbidden.

I do not expect that the executive branch or the Supreme Court will be upset by
the Agency's attempts to censor information that the public is entitled to. The
American people, however, should be worried. Once the Agency is unleased and the
iron curtain of official disclosure falls, we will all suffer its consequences.

Appendix 2.— The Willard Report

REPORT OF THE INTERDEPARTMENTAL GROUP ON UNAUTHORIZED DISCLOSURES OF
CLASSIFIED INFORMATION — MARCH 31, 1982

Chairman . — Richard K. Willard, Deputy Assistant Attorney General, Department
of Justice.

Members . —Daniel W. McGovern, Deputy Legal Adviser, Department of State;
Jordan Luke, Assistant General Counsel, Department of the Treasury; Kathleen A.
Buck, Assistant General Counsel; L. Britt Snider, Director for Counterintelligence
and Security Policy, Department of Defense, James W. Culpepper, Deputy Assistant
Secretary for Security Affairs, Department of Energy, and Ernest Mayerfeld,
Deputy General Counsel, Central Intelligence Agency.

EXECUTIVE SUMMARY

Unauthorized disclosure of classified information is a longstanding problem that
has increased in severity over the past decade. This problem has resisted efforts at
solution under a number of Administrations. Yet the protection of national security
information remains a fundamental constitutional duty of the President. The con-
tinuing large number of unauthorized dislosures has damaged the national security
interests of the United States and has raised serious questions about the govern-
ment’s ability to protect its most sensitive secrets from disclosure in the media. We
must seek more effective means to prevent, deter, and punish unauthorized disclo-
sures. At the same time, we must recognize that this complex problem is unlikely to
be solved easily or quickly.

The scope of this report is limited to unauthorized disclosures of classified infor-
mation where there is no apparent involvement of a foreign power. Such disclosures
primarily occur through media “leaks” by anonymous government employees, or in
publications and statements by former employees. Beyond the scope of this report
are the following kinds of disclosures: Clandestine disclosures of classified informa-
tion to foreign powers or their agents, which is espionage in the classic sense; au-
thorized disclosures of classified information by government officials who are not
publicly identified; leaks of unclassified information; and compromise of classified
information through negligence.

Although the foregoing kinds of disclosures also present serious problems, we
have limited the scope of this report in order to produce a more comprehensible set
of recommendations.

It should be noted that some high ranking officials erroneously believe they have
the authority to leak classified information in furtherance of government policy.
Such disclosures may only be made by persons with declassification authority under
Executive Order 12065 or otherwise from the President. Without such authority,

167

“friendly” leaks are just as unlawful as any other unauthorized disclosure of classi-
fied information.

LAWS PERTAINING TO UNAUTHORIZED DISCLOSURES

The unauthorized disclosure of classified information has been specifically prohib-
ited by a series of Executive orders (1) dating back at least to 1951. Such disclosures
also violate (2) numerous more general standards of conduct for government employ-
ees based on statutes and regulations. It is clear that any government employee
may be discharged or otherwise disciplined for making unauthorized disclosures of
classified information. Moreover, in virtually all cases the unauthorized disclosure
of classified information potentially violates one or more federal (3) criminal stat-
utes.

However, there is no single statute that makes it a crime as such for a govern-
ment employee to disclose classified information without authorization. With the ex-
ception of certain specialized categories of information, the government must ordi-
narily seek to prosecute unauthorized disclosures as violations of the Espionage Act
or as the theft of government property. Such prosecutions have not been undertak-
en because of a variety of legal and practical problems.

Therefore, it would be helpful if Congress enacted a law providing criminal penal-
ties for government employees who, without authorization, disclosure information
that is properly classified pursuant to statute or Executive order. Such a law would
be appropriate in view of the substantial body of criminal statutes punishing unau-
thorized disclosure of other kinds of sensitive information by government employ-
ees, such as banking, agricultural and census data. Classified national security in-
formation deserves at least the same degree of protection.

A promising development in recent years has been the judicial recognition that
the government may enforce secrecy agreements through civil litigation. Many gov-
ernment employees sign secrecy agreements as a condition of employment with in-
telligence agencies or to obtain access to classified information. In a series of cases
culminating in the Supreme Court’s 1980 decision in United States v. Snepp, the
Justice Department has obtained injunctions and monetary remedies from individ-
uals who seek to publish classified information in violation of their secrecy obliga-
tions. Such civil litigation avoids many of the procedural problems that would be
encountered in criminal prosecutions. The effectiveness of this program would be
increased by greater use of properly drafted secrecy agreements.

PROTECTIVE SECURITY PROGRAMS

The overall effectiveness of the government’s programs for safeguarding classified
information undoubtedly affects the frequency of leaks. Tight security measures—
including limiting access to classified information to those with a real "need to
know”— reduce the opportunities for unauthorized disclosure. By contrast, lax secu-
rity measures may encourage leaks by causing employees to believe that classified
information does not really require protection.

As a general rule, protective security programs serve a number of objectives be-
sides prevention of unauthorized disclosures, and therefore this report does not con-
sider these programs in great detail. The following observations are made: Greater
emphasis should be given to security education programs for senior officials; Better
controls on copying and circulation of classified documents would reduce dissemina-
tion and aid the task of investigating leaks; and The federal personnel security pro-
gram under E.O. 10450 and implementing regulations should be revised and updat-
ed.

We also considered whether there should be a government-wide program to regu-
late contacts with media representatives by government officials with access to clas-
sified information. Such contacts, especially when they occur on a frequent and in-
formal basis, may give rise to deliberate as well as negligent disclosures of classified
information. However, the operational considerations among the agencies vary
greatly. Therefore, each agency should be required to develop its own policy regard-
ing contacts between journalists and employees who have access to classified infor-
mation.

PAST EXPERIENCES WITH LEAK INVESTIGATIONS

Leaks are extremely difficult to investigate because they involve a consensual
transaction. Both the leaking official and the receiving journalist have a strong in-
centive to conceal the source of the information.

168

Leak investigations do not focus on the receiving journalist for a variety of rea-
sons. Rarely is there sufficient probable cause to justify a search or electronic sur-
veillance of the journalist. The use of some kinds of investigative techniques may
raise First Amendment concerns to which we should be sensitive. Finally, journal-
ists are unlikely to divulge their sources in response to a subpoena for documents or
testimony before a grand jury, and contempt sanctions against journalists in other
types of cases have not been effective.

Therefore, leak investigations generally focus on government employees who have
had access to the information that is leaked. In most situations, hundreds or thou-
sands of employees have had access to the informaiton, and there is no practical
way to narrow the focus of the inquiry. Also, the leaking official is unlikely to con-
fess his offense in response to a simple inquiry. The polygraph can be an effective
tool in eliciting confessions, but existing regulations do not permit compulsory use
of the polygraph for many employees.

Leaks of classified information constitute a potential violation of the espionage
laws and other statutes that fall within the FBrs investigative jurisdiction. (By con-
trast, many agencies that originate classified information are not authorized to go
beyond their own employees in investigating leaks.) However, FBI has been reluc-
tant to devote its resources to leak investigations. The burden of such investigations
falls almost entirely on the Washington Field Office. Such investigations frequently
involve high ranking government officials, who may be uncooperative. Sometimes a
time-consuming investigation is undertaken, only to reveal that the source of the
leak was a White House or Cabinet official who was authorized to disclose the infor-
mation. Finally, it is very rare for an investigation to identify the leaking official,
and even rarer that a prosecutable case is developed or that administrative action is
taken against a leaker.

The Criminal Division of the Justice Department has developed the practice of
screening leak cases before referral to FBI, for the purpose of eliminating those that
are unlikely to lead to criminal prosecution. This practice involves the frequently
criticized “eleven questions” that agencies are expected to answer when they report
leaks to the Criminal Division and that include an advance commitment to provide
and declassify such classified information as may be required to support a prosecu-
tion.

In summary, the past approach to leak investigations has been almost totally un-
successful and frustrating to all concerned. There have been frequent disputes be-
tween the Justice Department and agencies complaining about leaks. This ineffectu-
al system has led to the belief that nothing can be done to stop leaks of classified
information.

PROPOSED NEW APPROACH TO LEAK INVESTIGATIONS

Unless new criminal legislation is enacted, we should recognize that leak investi-
gations are unlikely to lead to successful criminal prosecutions. However, the
present system would be greatly improved if employees who leak classified informa-
tion could be identified and fired from their jobs. Therefore, we should recognize
that the likely result of a successful leak investigation will be the imposition of ad-
ministrative sanctions except for cases in which exacerbating factors suggest that
criminal prosecution should be considered.

We should also recognize that resources are available to investigate only a small
fraction of leaks. All leaks should be evaluated in light of criteria developed through
consultation between the Justice Department and affected agencies. These criteria
would include: the level of classified information disclosed; the resulting damage to
national security; the extent to which the information had been disseminated at the
time it was leaked; and the presence of specific “leads” to narrow the focus of inves-
tigation.

Agencies should be encouraged to conduct more extensive preliminary investiga-
tions before referring leaks to the Department of Justice for investigation. Affected
agencies shoud be consulted by the Department of Justice in determining which
leak cases warrant investigative priority. A decision to undertake criminal prosecu-
tion would not be required as a prerequisite to FBI investigation. FBI should be spe-
cifically authorized to investigate unauthorized disclosures that potentially violate
federal criminal law, even though administrative sanctions may be sought instead of
criminal prosecution.

The polygraph is an investigative technique occasionally used in leak investiga-
tions. By regulation, most federal agencies are not permitted to take adverse actions
against employees who refuse to be polygraphed. However, there is no constitutional
or statutory bar to requiring federal employees to take a polygraph examination as

169

part of an investigation of unauthorized disclosures of classified information. We
recommend that existing regulations be changed to permit greater use of the poly-
graph in leak investigations.

Use of the polygraph is a controversial technique, but security specialists believe
it can be effective in situations where a leak investigation turns a limited number of
suspects. Under this approach the polygraph is used sparingly and as a last resort
Such polygraph examinations can be limited to the circumstances of the disclosure
being investigated, and need not involve questions of a personal nature that some
employees find offensive.

Finally, when investigations identify employees who have disclosed classified in-
formation without authority, they should not be let off with a slap on the wrist. The
full range of administrative sanctions — including discharge — is available. Most em-
ployees have certain procedural rights, including notice, hearing and administrative
appeal. However, an agency head who follows proper procedures should have no dif-
ficulty in disciplining or discharging leakers. It would be helpful for the Merit Sys-
tems Protection Board and other administrative bodies to adopt “graymail”— type
procedures to protect classified information that may be involved in such situations.

SUMMARY OF RECOMMENDATIONS

1. The Administration should support new legislation to strengthen existing crimi-
nal statutes that prohibit the unauthorized disclosure of classified information.

2. All persons with authorized access to classified information should be required
to sign secrecy agreements in a form enforceable in civil actions brought by the
United States. For persons with access to the most sensitive kinds of classified infor-
mation, these agreements should also include provisions for prepublication review.

3. Agencies should adopt appropriate policies to govern contacts between media
representatives and government officials, so as to reduce the opportunity for negli-
gent or deliberate disclosures of classified information.

4. Each agency that originates or stores classified information should adopt inter-
nal procedures to ensure that unauthorized disclosures of classified information are
effectively investigated and appropriate sanctions imposed for violations.

5. The Department of Justice, in consultation with affected agencies, should con-
tinue to determine whether FBI investigation of an unauthorized disclosure is war-
ranted. The FBI should be permitted to investigate unauthorized disclosure of classi-
fied information under circumstances where the likely result of a successful investi-
gation will be imposition of administrative sanctions rather than criminal prosecu-
tion.

6. Existing agency regulations should be modified to permit the use of polygraph
examinations for government employees under carefully defined circumstances.

7. All agencies should be encouraged to place greater emphasis on protective secu-
rity programs. Authorities for the federal personnel security program should be re-
vised and updated.

NATURE OF THE PROBLEM AND SCOPE OF REPORT

Unauthorized disclosure of classified information has become ^ an increasingly
common occurrence. It is not a new phenomenon, but its severity has inceased
greatly over the past decade. The theft of the “Pentagon Papers” and their publica-
tion by the New York Times in 1971 ushered in an era of heightened media interest
in the exposure of classified information. Many of these disclosures occurred in the
context of revealing improper government activities. After a time, however, disclo-
sures continued while revealing no wrongdoing. Indeed, a few journalists seem to
believe that quoting from “highly classified” documents is an appropriate means of
entertaining, as well as informing the public. Today the unauthorized publication of
classified information is a routine daily occurrence in the United States.

The harm caused by these frequent unauthorized disclosures is manifold.

Particular items of information appearing in the press provide valuable intelli-
gence for our adversaries concerning the capabilities and plans of the United States
for national defense and foreign relations.

Unauthorized disclosures interfere with the ability of our government effectively
to carry out its policies. This “veto by leak” phenomenon permits a single bureau-
crat to thwart the ability of our democratic system of government to function prop-
erly.

Disclosures about U.S. intelligence programs are particularly damaging, because
they may causes sources to dry up. Lives of human agents are endangered and ex-
pensive technical systems become subject to countermeasures.

170

In particular foreign governments are reluctant to cooperate with the United
States because we are unable to protect confidential information or relationships.

This report has been kept unclassified, and as a result specific examples of harm-
ful unauthorized disclosures have not been included. Such examples can be provided
spearately.

Officials who make unauthorized disclosures ma^ persuade themselves that they
are serving the larger national interest by disclosing information that the public
has a right to know. Such officials may seek to advance their personal policy objec-
tives by leaks of classified information, on the assumption that there will be no seri-
ous harm to national security. Because leaks are so prevalent and leakers rarely
caught, some officials may believe there is nothing wrong with leaking classified in-
formation and that everyone does it.

Similarly, many journalists appear to believe they have a duty to divulge virtual-
ly any newsworthy secret information that can be acquired by whatever means they
choose to employ. To their way of thinking;, leaks are part of a game in which the
government tries to keep information secret and the media tries to find it out. Some
journalists are unwilling to assume responsibility for damage to the national securi-
ty in situations where they win this "game.”

Under these circumstances, only a fundamental change in prevailing attitudes
will alleviate the problem of unauthorized disclosures. We must seek to develop a
sense of discipline and self-restraint by those who work with or obtain classified in-
formation. This goal will not be achieved easily or quickly. But without a change in
attitudes, no program to deal with unauthorized disclosures can possibly be effec-
tive.

Certain kinds of disclosures are beyond the scope of this report, but should be de-
scribed briefly for purposes of comparison.

1. Classic espionage.—* Clandestine disclosures of classified information to foreign
powers or their agents is espionage in the classic sense. Investigating such matters
is primarily the responsibility of FBI’s foreign counterintelligence program. The
threat in this area increasing because of the increasing number of known or sus-
pected hostile intelligence agents in the United States. President Reagan's recent
Executive Order 12333 and now implementing guidelines will strengthen FBI’s abili-
ty to deal with this serious problem.

2. Authorized disclosures —High ranking officials often, believe they are au-
thorized to disclose otherwise classified information to the press in furtherance of
government policies. Since the classification system is established on the authority
of the President, he certainly has the power to authorize disclosures that amount to
a de facto declassification of such information. However, only the President can au-
thorize the declassification of information other than as provided in Executive
Order 12065. A high ranking official who discloses classified information without au-
thorization under that Executive Order or otherwise from the President violates the
law. Such disclosures should be investigated and penalized in the same manner as
other unauthorized disclosures of classified information. Applying a double standard
that overlooks "friendly” leaks of classified information breeds disrespect for the
law and can undermine the effectiveness of any enforcement program.

3. Unclassified leaks . — Some of the most embarrassing leaks do not involve classi-
fied information at all. We believe that leaks of classified information cause more
serious an long-lasting damage, and thus warrant separate treatment as provided in
this report, That is not to say that nothing can or should be done about leaks of
unclassified information. The government is entitled to protect a variety of informa-
tion from disclosure, including law enforcement investigatory information, proprie-
tary data, predecisional memoranda and other information pertaining to internal
government deliberations. Depending upon the circumstances, disclosure of such in-
formation may be unlawful, unethical, or a violation of applicable standards of con-
duct for government employees.

4. Negligent disclosures.— 1 The compromise of classified information through negli-
gence violates regulations and, depending upon the circumstances, may constitute a
criminal offense. Such disclosures involve sufficiently different causes and consider-
ations as to fall beyond the scope of this report. It is worth noting, however, that
many of the apparent media leaks involve inadvertent disclosures. High ranking of-
ficials are particularly susceptible to such disclosures because they have access to a
large volume of sensitive classified information and are required to deal with the
press on a frequent basis. The compromise of classified information would be re-

171

duced if officials would exercise greater care in their dealings with media represent-
atives.

LAWS PERTAINING TO UNAUTHORIZED DISCLOSURES

1, Executive orders

The protection of national security information is a fundamental constitutional
responsibility of the President. This responsibility is derived from the President’s
powers as Chief Executive, Commander-in-Chief, and the principal instrument of
United States foreign policy. The courts have recognized the constitutional dimen-
sion of this responsibility. Chicago & Southern Air Lines , Inc, v. Waterman Steam-
ship Corp., 333 U.S. 103, 111 (1948); United States v. Curtiss- Wright Export Corp 299
U.S. 304, 320 (1936); United States v. Marchetti, 466 F.2d 1309, 1315 (4th Cir.), cert,
denied, 409 U.S. 1063 (1972).

In a number of civil and criminal statutes, Congress has also recognized the Presi-
dent’s authority to safeguard national security information by adopting Executive
orders providing for a system of classification. Eg,, 5 U.S.C. 552(b)(1) (Freedom of
Information Act); 5 U.S.C. 552b(c)(l) (Government in the Sunshine Act); 5 U.S.C,
2302(b)(8)(A) (Whistleblower Statute); 18 U.S.C. 798; 50 U.S.C, 783(b).

In a series of Executive Orders dating back at least to 1951, Presidents have pro-
vided for a system of classification to safeguard national security information. Since
these Executive Orders are issued in fulfillment of the President’s constitutional re-
sponsibilities, they have the force and effect of law.

The present Executive Order on National Security Information, Executive Order
12065, prohibits the unauthorized disclosure of classified information. It provides
that officers and employees of the government shall be subject to appropriate ad-
ministrative sanctions if they knowingly, willfully and without authorization dis-
close properly classified information or compromise such information through negli-
gence. Sanctions may include termination of classification authority, reprimand,
suspension and removal.

The new draft executive order on national security information provides for simi-
lar prohibitions and sanctions and applies to government contractors, licensees and
grantees as well as government officers and employees.

2, Criminal statutes

In analyzing whether an unauthorized disclosure of classified information consti-
tutes a criminal violation, it is necessary to consider three categories of criminal
statutes; (a) those explicitly prohibiting the disclosure of “classified information”; (b)
the so-called “espionage” laws, which prohibit the disclosure of “national defense”
information; and (c) the statute prohibiting theft of government property.

(a) Classified information statutes. — There is no general criminal penalty for the
unauthorized disclosure of “classified information” as such; however, several crimi-
nal statutes prohibit unauthorized disclosure of classified information in particular
situations. Section 783(b) of Title 50 prohibits government employees from disclosing
any classified information to agents of foreign governments or members of commu-
nist organizations. It is unlikely that this statute would be construed to apply to
unauthorized disclosures of classified information to the media, even though the in-
formation could find its way into the hands of an agent of a foreign government or
a member of a communist organization as a consequence of its publication.

Section 2277 of Title 42 prohibits government employees and contractors from
knowingly communicating “Restricted Data” to any person not authorized to re-
ceive such information. “Restricted Data” constitutes classified information concern-
ing atomic v/eapons and nuclear material. Section 2274 of Title 42 prohibits anyone
having possession, access or control over Restricted Data from disclosing it with the
intent or reason to believe it will be used to injure the United States or secure an
advantage to a foreign nation.

In addition to these provisions, 18 U.S.C. 798 prohibits any person from disclosing
to any unauthorized person “classified information” concerning communications in-
telligence and cryptographic activities.

These three sets of provisions are the only criminal statutes that punish the un-
authorized disclosure of “classified information” as such.

Cl' Espionage lews. — Certain provisions of the espionage laws may also be violated
by unauthorized disclosures of sensitive information. The two provisions that would
most likely be violated by an unauthorized disclosure of classified information to the
media would be 18 U.S.C. 793(d) and (e). Section 793(d) prohibits any person having
authorized possession of materials such as documents or photographs “relating to
the national defense” or “information” relating to the national defense s if there is

172

“reason to believe” that this information can be used “to the injury of the United
States or to the advantage of any foreign nation,” from transmitting such materials
or information to “any person not entitled to receive it.” Similarly, section 793(e)
prohibits^ any person having unauthorized possession or access to such materials or
information from transmitting them to other unauthorized persons or failing to de-
liver them to an authorized government officer or employee.

These provisions have not been used in the past to prosecute unauthorized disclo-
sures of classified information, and their application to such cases is not entirely
clear. However, the Department of Justice has taken the position that these statutes
would be violated by the unauthorized disclosure to a member of the media of classi-
fied documents or information relating to the national defense, although intent to
injure the United States or benefit a foreign nation would have to be present where
the disclosure is of “information” rather than documents or other tangible materi-
als. These laws could also be used to prosecute a journalist who knowingly receives
and publishes classified documents or information.

One category of classified information that would probably not be covered by
these provisions is information that could not fairly be characterized as “relating to
the national defense.” In Gorin v, United States , 312 U.S. 19, 28 (1940), the Supreme
Court stated that in the context of this statute “national defense” is “a generic con-
cept of broad connotations, referring to the military and naval establishments and
the related activities of national preparedness.” Currently information may be clas-
sified under Executive Order 12065 if it relates either to “the national defense” or
to “the foreign relations” of the United States. Because the term “national defense”
was so broadly defined in Gorin , it is likely to cover most information relating to
“foreign relations” that is properly classified. However, it is possible that the two
terms do not Overlap completely, and if so, only the disclosure of information relat-
ing to the national defense would be covered by sections 793(d) or (e).

(c) Theft of Government property . — 18 U.S.C. 641 provides criminal penalties for
the unauthorized sale or disposal of “any record, voucher, money, or thing of value
of the United States,” or the knowing receipt of the same “with intent to convert it
to his use or gain.” Convictions under this statute have been upheld in cases where
government documents or information have been taken. United States v. Friedman,
445 F.2d 1076 (9th Cir.), cert . denied, 404 U.S. 958 (1971) (conviction for receipt of
copy of secret grand jury transcript); United States v. Lambert , 601 F.2d 69 (2d Cir.
1979), cert denied , 444 U.S. 871 (1979) (convictions for selling information derived
from Drug Enforcement Administration computer).

There has been no definitive court test of the applicability of section 641 to unau-
thorized disclosures of classified information. 1 The Department of Justice has taken
the position that prosecution under this statute would be warranted in cases of un-
authorized disclosure of classified information. Of course, the substantive applicabil-
ity of this statute remains to be established. In addition, many of the procedural
barriers to successful criminal prosecution would remain.

(d) Practical barriers to successful prosecution . — Although there are numerous un-
resolved questions about the substantive applicability of the foregoing criminal stat-
utes, it is clear that most unauthorized disclosures potentially violate one or more of
these statutes. Yet the fact remains that no criminal prosecution has been attempt-
ed since Daniel Ellsberg and Anthony Russo were indicated for leaking the “Penta-
gon Papers.” (Prosecution in that instance was dropped because of governmental
misconduct in investigating the case.)

One problem is that leak cases are hard to solve. But even when a suspect is iden-
tified, there are numerous practical barriers to criminal prosecution. These barriers
may be summarized as follows.

First, criminal prosecution serves to confirm the accuracy and sensitivity of the
information that has been disclosed. For this reason, many agencies do not want
cases prosecuted, in order to maintain doubt as to the accuracy of the disclosed in-
formation.

Second, criminal prosecution generally requires the Government to prove that the
disclosures in question were damaging to national security, which may require fur-
ther public disclosures of classified information. Such proof is often required under
the espionage statutes and, as a practical matter, is extremely helpful in giving any
prosecution jury appeal. ^ ^

Third, criminal trials are normally conducted before' a jury and open to the
public. Defendants can threaten to require disclosures of sensitive information in

1 Compare United States v. Truong , 629 F.2d 908, 927 4th Cir. 1980) with id. at 982; see United
States v. Boyce, 594 F.2d 1246, 1252 (9th Cir.), cert, denied, 444 U.S. 855 (1979).

173

the course of trial— the so-called “graymail” problem. The Classified Information
Procedures Act of 1980 alleviates this problem to some extent but does not solve it
entirely.

In summary, the courts of criminal prosecution in terms of harm to national secu-
rity are likely in many cases to outweigh the benefits of deterrence and respect for
the law. Of course, the availability of criminal sanctions is important and should be
considered in appropriate cases. New legislation could reduce the practical barriers
to successful prosecution. But the primary focus of the effort to enforce the laws
against unauthorized disclosure should involve administrative and other civil reme-
dies.

3. Civil remedies

There is no general statute providing for civil penalties or injunctive relief in
cases of disclosure of classified information. The absence of such an authorizing stat-
ute was noted by several members of the Supreme Court in the “Pentagon Papers”
case. However, it appears that a majority of the Court in that case would have per-
mitted the Government, even absent a statute, to enjoin the disclosure by the media
of classified information that threatened “direct, immediate, and irreparable
damage to our Nation or its people.” New York Times Co. v. United States, 403 U.S.
713, 730 (1971) (Stewart, J., concurring). As applied in the Pentagon Papers case,
this is an extremely difficult standard to meet. It is not clear that, as a practical
matter, the First Amendment would permit a statute authorizing injunctions
against the media under a significantly lower standard.

There are specific statutes providing civil remedies for unauthorized disclosure of
atomic energy information. 42 U.S.C. 2167, 2168, and 2280. The latter statute was
successfully relied upon in obtaining a district court injunction against disclosure of
H-bomb information. United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis.
1979), appeal dismissed, 610 F.2d 819 (7th Cir. 1979).

Government employees who engage in unauthorized disclosures of classified infor-
mation are subject to discipline or discharge for misconduct pursuant to 5 U.S.C.
7513 or equivalent statutes governing specialized employment systems. Applicable
standards of conduct are found in Executive Order 12605 and implementing agency
regulations prohibiting unauthorized disclosure of classified information, as well as
the criminal statutes discussed previously. In addition, unauthorirzed disclosure of
classified information would violate a number of general standards of conduct for
government employees. See, e.g., 5 C.F.R. 735.201a(c) (impeding government efficien-
cy); id. 735,20 la(e) (making a government decision outside official channels); id.
735.201a(f) (affecting adversely the confidence of the public in the integrity of the
government); id. 735.206 (misuse of information not made available to the general
public); id. 735.209 (conduct prejudicial to the government).

In addition to the normal adminstrative sanctions for misconduct, 5 U.S.C. 7532
provides for suspension or removal of certain employees if such action is found to be
“necessary in the interest of national security,” This statute is implemented in Ex-
ecutive Order 10450 and various agency regulations. These authorities are part of
the federal personnel security program and are designed to ensure that persons who
are “security risks” do not serve in sensitive positions.

Executive Order 10450 was promulgated in 1953 and seriously needs revision to
take into account subsequent court decisions and changes in government organiza-
tion. These shortcomings do not prevent the government from disciplining or dis-
charging employees for unauthorized disclosure of classified information, since such
disclosures constitute misconduct for which normal administrative sanctions are
available. However, revision of Executive Order 10450 would be helpful in stream-
lining the authority of agencies to revoke security clearances and take other person-
nel actions in the interest of national security.

In addition to standards imposed by regulation, many present and former govern-
ment employees are Dound by contractual or fiduciary obligations not to disclose
classified information in an unauthorized manner. The Department of Justice has
had considerable success in enforcing such obligations in civil litigation against
former government employees. Since such persons no longer work for the govern-
ment, the possibility of administrative sanctions is not a deterrent to their making
unauthorized disclosures.

Nondisclosure agreements typically have one or both of the following key provi-
sions. First, the employee agrees never to disclose classified information to an unau-
thorized person. Second, the employee promises not to publish any material related
to classified activities without the express prior approval of the agencv. This second
provision is implemented through a mechanism for prepublication review of manu-

174

scripts submitted by present or former employees for deletion of classified informa-
tion*

Key judicial decisions have held that the government is entitled to an injunction
against former employees who seek to publish without obtaining clearance pursuant
to their obligations to comply with prepublication review programs. Once an agency
conducts such prepublication review, it is entitled to deleted classified information,
subject to judicial review under the same general standards as applied in litigation
under the Freedom of Information Act* Finally, a person who publishes in violation
of his prepublication review obligations forfeits the right to any profits from his
publication, which can be impressed with a constructive trust for the benefit of the
Government. United States v. Snepp, 444 U.S. 507 (1980); Knopf v. Colby , 509 F.2d
1362 (4th Cir.), cert denied . 431 US. 992 (1975); United States v. Marchetti, 466 F.2d
1309 (4th Cir.), cert . denied , 409 U.S. 1063 (1972). In addition, persons who violate
injunctions to comply with nondisclosure obligations risk sanctions for contempt of
court, which can include both civil and criminal penalties.

The present policy of the Justice Department, as stated by Attorney General
Smith on September 3, 1981, is vigorous and even-handed enforcement of nondisclo-
sure obligations under the Snepp guidelines. This policy statement revoked guide-
lines issued under the Carter Administration that suggested the Snepp doctrine
would be invoked only under limited circumstances.

The availability of civil remedies under the Snepp doctrine suggests that greater
attention should be paid to the use of nondisclosure agreements for persons with
authorized access to classified information. At a minimum, all such persons should
be required to agree never to disclose classified information without authorization.
In addition, persons with access to the most sensitive kinds of classified information
should be required to agree to a system of prepublication review.

4 . Recommendations for new legislation

As indicated above, criminal sanctions for unauthorized disclosure of classified in-
formation as such apply only in limited situations involving information concerning
the national defense, nuclear weapons and materials, and communications and cry-
topgraphic intelligence. Moreover, there are a number of substantive and procedur-
al barriers to successful criminal proescution in most cases of unauthorized disclo-
sures to members of the media.

To close the gaps in the present law, we recommend the introduction of legisla-
tion imposing a criminal penalty for all unauthorized disclosures of classified infor-
mation by government employees. Such a statute should be simple and general in
order to cover all situations, and might provide as follows:

Whoever, being an officer or employee of the United States or a person with au-
thorized access to classified information, willfully discloses, or attempts to disclose,
any classified information to a person who is not an officer or employee of the
United States and who is not authorized to receive it shall be fined not more than
$10,000, or imprisoned not more than three years, or both.

In addition, there should be appropriate definitions of the terms employed. It
would be helpful to have a specific procedure for establishing that information form-
ing the basis for prosecution was in fact properly classified, which does not require
public disclosure of additional classified information. A similar statutory provision
could be drawn to apply to former employees who disclose classified information.

An alternative approach to filling the legislative gap would be to amend 18 U.S.C.
641 to make it clear that classified information is a “thing of value” subject to the
penalties of that statute.

Enactment of these or similar provisions would clarify current criminal prohibi-
tions, close the loopholes in these statutes, and give notice that all unauthorized dis-
closures of classified information are sufficiently serious to warrant criminal sanc-
tions. They would also alleviate— but not solve entirely — certain of the practical
problems likely to be presented in criminal prosecutions.

Present civil statutes and regulations permitting disciplinary action for unauthor-
ized disclosures by government employees are generally adequate, except that they
apply only to persons who disclose classified information, not to those who receive
it. A person who solicits and receives classified information may be no less responsi-
ble for an unauthorized disclosure of such information than the government employ-
ee who transmits it, but his conduct is not prohibited by any civil statute. Although
we make no recommendation with respect to introduction of legislation providing
for civil penalties or other remedies against persons who receive classified informa-
tion, we believe the subject merits further study as an effective, though probably
controversial, method of deterring unauthorized disclosures.

175

PROTECTIVE SECURITY PROGRAMS

Careful attention to the fundamental elements of a sound security program will
undoubtedly discourage leaks — and have a number of other beneficial effects on the
safeguarding of national security information. Among these elements are the follow-
ing:

Security clearances should be given only to individuals who have been determined
to be trustworthy on the basis of adequate background information.

National security information should be clearly identified with the proper classifi-
cation and stored in a physically secure manner.

Access to classified information should be given only to persons with the proper
clearances and requisite “need to know.”

These principles seem obvious— and yet they are frequently ignored in many gov-
ernment agencies. Violations of these rules is often most common at the highest
levels of government.

To be sure, adherence to these security principles will not stop the deliberate
leaker. But disregard for these principles may encourage leaks by causing employ-
ees to believe that it is not really important to protect classified information. Good
security practices constantly remind people who handle classified information of
their obligations for its safekeeping.

Protective security programs are generally outside the scope of this report. The
Security Committee (SECOM) established by the Director of Central Intelligence in
DCID 1/11 has responsibility for security programs involving intelligence and intel-
ligence sources and methods. SECOM is composed of the directors of security for all
agencies represented on the National Foreign Intelligence Council. In addition, the
Information Security Oversight Office (ISOO) of the General Services Administra-
tion has responsibility for the government-wide program of safeguarding national
security information under Executive Order 12065. Finally, the Office of Personnel
Management is responsible for implementing the federal personnel security pro-
gram. These organizations deserve support in their efforts to strengthen the govern-
ment’s protective security programs.

Two particular aspects of protective security deserve emphasis because of their
impact on the problem of unauthorized disclosures. First, security education pro-
grams for senior officials deserve greater emphasis. Such officials are often too busy
to receive detailed briefings on proper security procedures, yet they generally have
access to the most sensitive kinds of information. In particular, senior officials need
to be aware of potential pitfalls of dealing with journalists in areas where classified
information is involved. SECOM has produced a security orientation especially de-
signed for senior officials, who should be encouraged to avail themselves of this
briefing.

Second, better controls on the copying and circulation of classified documents
would reduce unauthorized disclosures by restricting dissemination of classified in-
formation. Such controls can also assist in leak investigations by identifying persons
who had access to the information that was disclosed. A recent study ("APEX”)
demonstrated that there are insufficient resources to permit better controls on the
tremendous volume of classified information that must be circulated within the gov-
ernment. This problem should be reconsidered in the context of implementing the
successor to Executive Order 12065.

Another problem that deserves attention is the federal personnel security pro-
gram. This program is governed b} r Executive Order 10450, which was adopted in
1953. The order has not been revised to take into account subsequent court decisions
and changes in government organization. The FBI no longer collects information
about subversive organizations so as to provide a data base for this program because
of uncertainty regarding legal constraints and Attorney General guidelines. Because
of these and other shortcomings, the federal personnel security program is largely
defunct. It is unlikely that improvements in this program would reveal persons who
are likely to leak classified information to the media, but a better effort would
reduce our vulnerability to clandestine infiltration of sensitive positions.

Finally, consideration should be given to rules concerning contacts between media
representatives and government officials who have access to classified information.
Such contacts — especially when they occur frequently and on an informal basis —
may lead to neglect or deliberate disclosures. Therefore, programs to regulate media
contacts could serve to reduce unauthorized disclosures. Possible approaches would
include one or more of the following elements: Requiring prior approval of a senior
official before discussing official matters with a journalist; requiring all media con-
tacts to be arranged through the agency’s public affairs office; requiring a record to
be kept of all media contacts; requiring reports to be prepared describing all matters

176

discussed with journalists; and restricting access of journalists to areas where classi-
fied documents are stored and used.

It would be difficult to develop a program in this area to apply throughout the
government. Each agency has its own particular organizational and functional char-
acteristics. However, each agency should be required to consider this problem and
develop a specific program to reduce the opportunities for negligent and deliberate
disclosures to the media. We recommend that each agency be directed to promul-
gate appropriate regulations (if it does not already have them) and ensure that its
policy is communicated to all employees with access to classified information.

PAST EXPERIENCES WITH LEAK INVESTIGATIONS

Leaks of classified information to the media over the past twenty years have been
so numerous that only a small fraction could be investigated. These investigations
have rarely been successful in identifying the sources of such disclosures. In a
number of the cases that were solved, no adverse action was taken against the gov-
ernment employee found to have leaked classified information. There has never
been a successful criminal prosecution for leaking classified information.

The Government’s dismal record in leak investigations has a number of explana-
tions, By their nature, leaks to the media are difficult to investigate. Leaks are con-
sensual transactions in which both parties — the leaking official and the receiving
journalist — have a strong incentive to conceal the source of the information. Self-
imposed limitations on the use of certain investigative techniques have made the
task even more difficult. The development of more productive approaches to leak
investigations has been hampered by misunderstandings between the Justice De-
partment and agencies whose information is leaked. We cannot expect to do better
in the future without understanding these problems encountered in the past.

Agencies whose classified information is leaked have limited powers to conduct
investigations. Since most leaks of classified information potentially violate criminal
statutes, leak investigations are viewed as involving a law enforcement function.
The National Security Act of 1947 provides that the CIA “shall have no police, sub-
poena, law-enforcement powers, or internal security functions.” 1 Similar limitations
apply to the military services and the Department of Energy. 2 Executive Order
12333, § 1.7(d), requires agencies in the intelligence community to report crimes
such as leaks of classified information to the Justice Department. Implementing
procedures for this provision limit agency authority to conduct preliminary investi-
gations of such matters generally to interviews of current employees and examina-
tion of agency premises. And, as a practical matter, most government agencies do
not have the capability to conduct investigations outside their own areas of pro-
grammatic responsibility.

CURRENT DEPARTMENT OF JUSTICE POLICY

These legal and practical limitation have caused the burden of leak investiga-
tions to fall on the FBI. Current Justice Department policy in this regard dates back
to the early 1960’s. At that time, the FBI was inundated with numerous requests for
investigation regarding possible violations of the espionage laws as they relate to
“media leaks” and other mishandling of classified information.

Espionage investigations that have no apparent foreign connection are investigat-
<■“ as “Espionage-X” matters by the FBI. Those investigations regarding the mishan-
dling of classified information, loss of classified information through negligence, or
other violations unrelated to media disclosures, are investigated upon receipt by the
FBI, In these types of investigations, the subject is generally known and the scope of
investigation limited. Although the Criminal Division is notified at the inception of
these investigations and is kept advised of their status, it does not initiate these in-
vestigations.

Media leaks, however, pose different problems, require more investigation, and
are far more numerous. Current policy regarding media leaks requires that prior to
any investigation by the FBI, eleven questions must be answered by the injured
agency. These questions are utilized to the Criminal Division to determine which
cases should be investigated by the FBI. Such screening is necessary due to the - r ast
amount of media leak investigation requests and the often large number of inter-

1 50 U.S.C. 403(d)(3). However, the Director of Central Intelligence is given specific responsibil-
ity for protecting intelligence sources and methods. Id. Therefore, the DCI is appropriately con-
cerned with leaks that endanger intelligence sources and methods.

2 18 U.S.C. 1385 (Posse Comitatus Act); 42 U.S.C. 2271(b).

177

views to be conducted in this type of case. The responses to the eleven questions are
also crucial in targeting the early stages of any investigation that is undertaken.
These questions can be dissected into three categories.

Questions 1 through 3 pertain to the identification of the article(s) contained in
the media and the nature of the classified information contained therein. These
questions are:

1. The date and identity of the article or articles disclosing the classified informa-
tion.

2. Specific statements in the article which are considered classified and whether
the data was properly classified.

3. Whether the classified data disclosed is accurate. This information is necessary
to determine whether a violation has occurred and to assist the FBI in the investi-
gation, if a violation has occurred.

Responses to questions 4 through 8 serve to identify the sources of the classified
information disclosed. These questions are:

4. Whether the data came from a specific document and, if so, the original of the
document and the name of the individual responsible for the security of the classi-
fied data disclosed.

5. The extent of official dissemination of the data.

6. Whether the data has been the subject of prior official releases.

7. Whether prior clearance for publication or release of the information was
sought from proper authorities.

8. Whether the material or portions thereof, or enough background data has been
published officially or in the press to make an educated speculation on the matter
possible.

Responses to these questions are a prerequisite for FBI investigations in that they
furnish initial leads and may give direction toward the person or persons responsi-
ble for the disclosure. Some of these questions further assist in determining if a vio-
lation has occurred or if the information could have been obtained from some un-
classified source or prior publication.

Questions 9 through 11 pertain to the prosecutive future of the investigation.
These questions are:

9. Whether the data can be declassified for the purpose of prosecution and, if so,
the name of the person competent to testify concerning the classification.

10. Whether declassification had been decided upon prior to the publication or re-
lease of the data.

11. What effect the disclosure of the classified data could have on the national
defense.

The responses to these questions are used by the Criminal Division to determine if
a successful prosecution can be made, should the perpetrator be identified.

If the responses to the “eleven questions” indicate it is not likely that the perpe-
trator will be identified due to extensive dissemination of the material and/or that
successful prosecution cannot be mounted, the Criminal Division will not request
that the FBI conduct an investigation. There is, however, an exception to this
policy. The Criminal Division will request an FBI investigation, if, in spite of the
responses to the above questions, it can be demonstrated that: (a) the disclosure con-
stitutes a very serious compromise of classified information and it is imperative that
the person responsible be identified so as to preclude further disclusures; (b) there is
a real possibility that the investigation will be fruitful, e.g., the information had
very limited distribution; and (c) the originating agency has not finally decided
against declassification for prosecutive purposes.

PROBLEMS WITH THE CURRENT POLICY

Although current Justice Department policy requests that complaints concerning
media leak matters be forwarded to the Criminal Division for their review, often the
complaint is initially forwarded to the FBI. Also, agencies that report leaks occa-
sionally omit the responses to the eleven questions or furnish incomplete informa-
tion. This practice causes delay while the Criminal Division corresponds with the
agency and requests responses to the eleven questions or more detail regarding the
responses that may have been furnished. When the initial complaints are furnished
in a complete package, FBI investigation can generally be completed in a reasonable
period of time depending on the number of interviews to be conducted and other
investigative considerations.

The Criminal Division receives numerous complaints requesting investigation in
media leak matters which are never referred to the FBI, based upon the above crite-
ria. If all of these complaints were fully investigated, the manpower used would be

178

substantially higher. Leak investigations are manpower-intensive and the burden
falls primarily upon FBI’s Washington Field Office. Investigating a larger number
of leak cases would necessarily divert FBFs resources from other important prior-
ities such as foreign counterintelligence and terrorism investigations.

Moreover, a number of legal and policy restrictions limit the ability of FBI to con-
duct effective leak investigations in cases that are referred. In most cases, the prin-
cipal “lead” is the published media account of the leaked information. But investi-
gations are generally not permitted to focus on the journalist who published the in-
formation. Rarely is there sufficient probable cause to justify use of Fourth Amend-
ment techniques, such as searches or electronic surveillance. Current Department of
Justice regulations strictly limit the circumstances under which journalists can be
questioned or subpoenaed, and require express prior approval by the Attorney Gen-
eral in each case. 45 Fed. Reg. 76436 (Nov. 19, 1980), to be codified at 28 CFR 50.10.
Current informal policies also preclude physical surveillance of journalists or the
use of informants directed at the media in leak cases. Use of these and other inves-
tigative techniques is appropriately limited because of First Amendment concerns.

Since FBI cannot investigate journalists who receive the classified information,
they must focus on government employees who have had access to the information
that has been leaked. Often hundreds or thousands of employees have had access to
the information in question. Unless the information received more limited distribu-
tion or there are other “leads” that permit narrowing the scope of inquiry, there is
no practical means to conduct an investigation.

Even where the inquiry can be limited to a manageable number of employees,
FBI has very little ability to conduct a successful investigation. The leaking official
is unlikely to confess in response to a simple inquiry. The polygraph can be an effec-
tive investigatory technique, but most government employees can be polygraphed
only if they volunteer for the examination.

Present policy of the Office of Personnel Management (OPM) sharply limits use of
the polygraph for employees in the competitive service. Federal Personnel Manual,
chapter 736, appendix D; see memorandum from Llewellyn H. Fischer, Acting Asso-
ciate General Counsel of OPM, to Lawrence A. Wooby, Security Appraisal Officer of
DEA, September 30, 1981. This policy requires, among other things, that employees
must voluntarily consent to be polygraphed and that a refusal to consent cannot be
made pari of their personnel file. Other agencies, including the Department of De-
fense and Department of State, have similar policies regarding some or all of their
employees who would not otherwise be covered by the OPM policy.

Certain intelligence agencies, including NSA (for civilian employees) and CIA, reg-
ularly use the polygraph to screen candidates for employment as well as in investi-
gations of employees. Department of Justice policy generally permits use of the
polygraph in investigating unauthorized disclosure cases, and an adverse inference
may be drawn from an employee’s refusal to be examined. FBI policy permits an
employee to be discharged for refusing an order from the Director to take a poly-
graph examination; an adverse inference may be drawn if the employee declines a
request to be examined. See Memoranda from Attorney General Civiletti to William
H. Webster and Michael E. Shaheen, dated May 4, 1980. See also Memorandum of
John M. Harmon, Assistant Attorney General, Office of Legal Counsel, May 1, 1980.

In addition to limitations upon the techniques that can be employed, FBI often
finds that high-ranking government officials are uncooperative with leak investiga-
tions. FBI does not have the authority to compel government employees to give
interviews, sign affidavits, or — even if agency regulations are not a bar — take poly-
graph examinations. Such compulsion can only be exercised by agency heads who
may be reluctant to discipline high-ranking officials who refuse to cooperate with
leak investigations.

In summary, past experience with leak investigations has been largely unsuccess-
ful and uniformly frustrating for all concerned. Agencies have been unable to con-
duct investigations outside their own organizations, and yet Justice has been unwill-
ing to permit FBI to investigate most cases. FBI has been asked to investigate a
number of leaks without being permitted to use adequate techniques to solve cases.
There have been frequent disputes and misunderstandings. On the rare occasions
that leaking officials are identified, they often escape even administrative sanctions.
This whole system has been so ineffectual as to perpetuate the notion that the gov-
ernment can do nothing to stop leaks of classified information.

PROPOSED NEW APPROACH TO LEAK INVESTIGATIONS

We should recognize that the threat of criminal prosecution is so illusory as to
constitute no real deterrent to the prospective leaker. A more promising approach

179

involves better efforts to identify leakers and the resolve to impose administrative
sanctions. For most government employees, a realistic prospect of being demoted or
fired for leaking classified information would serve as a deterrent. An effective ad-
ministrative enforcement program would also reverse the common perception that
tlie Government is powerless to stop leaks of classified information.

The authority and responsibility of agencies that originate classified information
should be clarified. All serious leaks should be evaluated and investigated internally
by the agency that originated the information. Agencies should adopt procedures to
assure that these steps are taken in a timely manner.

Agencies whose classified information is the subject of an unauthorized disclosure
should assume greater responsibility for conducting preliminary investigations. All
agencies are authorized to conduct preliminary internal investigations of such mat-
ters, including interviews with current employees and contractors and the examina-
tion of agency premises. Agencies are also authorized to make inquiries of other
agencies to which the information had been disseminated to determine the extent of
further dissemination and the present location of the documents in question. Such
preliminary investigations at recipient agencies may be conducted either by the re-
cipient agency or by the originating agency with the recipient’s consent.

The purposes of such preliminary investigations are: (1) to gather sufficient infor-
mation for the Justice Department to decide whether FBI investigation is warrant-
ed, and (2) to provide the originating agency with data necessary to assist in proper-
ly safeguarding classified information. At any point that a preliminary investigation
develops information indicating that a particular person is responsible for the unau-
thorized disclosure, then the matter should be immediately referred to the Depart-
ment of Justice. Otherwise, unauthorized disclosures should be reported to the De-
partment of Justice only after the preliminary investigation is completed, unless
there are exigent circumstances.

Current requirements for reporting unauthorized disclosures, as reflected in the
“eleven questions,” should be revised so that prosecutive potential is no longer a
decisive factor. FBI’s authority should be clarified to include investigation of unau-
thorized disclosures of classified information under circumstances where the likely
result of a successful investigation will be imposition of administrative sanctions
rather than criminal prosecution. As a consequence, agencies would no longer be
required to make a commitment to declassify information at the time of referral.

In consultation with affected agencies, the Department of Justice should develop
new standards for reporting and evaluation of unauthorized disclosures for possible
investigation by FBI. There is a general consensus that the following basic criteria
must be considered: The level of classified information disclosed; the extent of re-
sulting damage to national security; the extent to which the information had been
disseminated at the time the disclosure occurred; and the presence of specific
“leads” to narrow the focus of investigation.

For example, it would ordinarily be an inappropriate use of FBI's resources to in-
vestigate the leak of a “confidential” level document of which thousands of copies
had been disseminated throughout the government. Timeliness is also an important
factor, as leak investigations are more difficult to conduct when the trail is cold.

Even if properly evaluated and screened, there are likely to be too many leaks for
FBI to investigate each one. Again in consultation with affected agencies, the De-
partment of Justice must decide on priorities for the use of available FBI resources.
Even if cases cannot be investigated, however, the process of reporting and analyz-
ing them can provide a useful data base for developing protective security measures
and investigating future leaks.

The foregoing proposals requiring consultations between the Department of Jus-
tice and affected agencies should be implemented through an interagency advisory
panel. One possibility is to use an existing group such as the Security Committee
(SECOM), established by the Director of Central Intelligence. However, the author-
ity of SECOM is limited to the protection of intelligence and intelligence sources
and methods. Therefore, a new advisory panel should be established, although
SECOM could certainly be included in the new group.

FBI’s approach to investigating unathorized disclosure cases should be reviewed
by the Department of Justice in order to remove unnecessary restrictions on the use
of certain techniques.

The polygraph can be a useful tool in leak investigations under certain circum-
stances. It should be used selectively and its results considered within the context of
a complete investigation. The polygraph should not be used for dragnet-type screen-
ing of a large number of suspects or as a substitute for logical investigation by con-
ventional means. It is most helpful when conventional investigative approaches
have identified a small number of individuals, one of whom is fairly certain to be

180

culpable, but there is no other way to resolve the case. A polygraph examination in
this situation can be limited to the unauthorized disclosure that is being investigat-
ed and should not include questions about life style that many employees would find
offensive. Moreover, polygraph results should not be relied upon to the exclusion of
other information obtained during an investigation.

There is no constitutional or statutory prohibition on use of the polygraph to in-
vestigate unauthorized disclosure of classified information by government employ-
ees. An employee may be discharged for refusal to cooperate with an investigation
of his fitness for continued employment. See, e.g„ 5. C.F.R. Y35,201a(c), 735.201a(f)
and 735.209; Lefkowitz v. Turley, 414 U.S. 70, 84 (1974). Statements that an employ-
ee is compelled to make in this fashion cannot be used as evidence in a criminal
prosecution. Garrity. v. New Jersey, 385 U.S. 493 (1967). However, such statements
may be used in an administrative proceeding to discipline or discharge the employ-
ee. Lefkowitz v. Turley, supra . This authority also supports requiring government
employees to submit to polygraph examinations in connection with investigations of
unauthorized disclosures. See Memorandum of Larry A. Hammond, Acting Assistant
Attorney General, Office of Legal Counsel, February 22, 1980,

OPM and other agencies with more restrictive policies on use of the polygraph
should be directed to amend their regulations if necessary to permit adverse conse-
quences to follow an employee's refusal to cooperative with polygraph examinations
used to investigate unauthorized disclosures of classified information. Such poly-
graph examinations could be limited to the circumstan>s of the unauthorized dis-
closure being investigated, and would not include unrelated questions. The employ-
ing agency would be permitted to deny security clearances, to draw adverse eviden-
tiary inferences, or to take other administrative action, as appropriate, against an
employee who refuses to cooperate with such a polygraph examination.

Finally, agency heads should be directed to impose appropriate administrative
sanctions in situations where employees fail to cooperate with investigations or are
found to have disclosed classified information without authorization. This will pro-
vide assurance to all involved in the investigatory process that their efforts will be
worthwhile. There is clear authority to discipline or discharge employees for the
failure to cooperate with an investigation. What is required is the determination to
use this authority in appropriate cases.

Association of American Publishers, Inc.

OOP

2005 Massachusetts Avenue, N.W.
Washington, O.C. 20036
Telephone 202 232-3335

July 27, 1984

The Honorable William D. Ford, Chairman
Committee on Post Office and Civil Service
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

The Association of American Publishers (AAP), together with the Association of
American University Presses (AAUP), wishes once again to go on record in
support of legislation to curb what has now been revealed as a widesoread
practice of the Reagan Administration: to impose upon Federal Government
employees life-time censorship on writings that bear upon the government
experiences of those employees.

Both of our organizations have previously informed the Congress of the
oevastating impact that the pre-publication review requirements of the
Presidential Directive on Safeguarding National Security Information (March
1983) would have on the free speech traditions of this Nation and on the
vitality of the book publishing process. AAP and AAUP members were,
accordingly, heartened by the February 1984 memorandum from the White House
indicating that the Administration was suspending the pre-publication review
provisions of the Directive pending discussions with Congress; we nevertheless
expressed our conviction at that time that legislation permanently barring
such requirements should proceed.

Having in any event assumed, along with most other observers, that the threat
of massive imposition of pre-publication requirements had been at least
postponed, we were stunned by the June 11, 1984 General Accounting Office
Report revealing that, notwithstanding the White House statement,
pre-publication review requirements had already been systematically imposed on
thousands upon thousands of government employees.

The GAO report makes starkly clear that the March 1983 Directive was merely
one tentacle of an octopus-like censorship program spreading through the
Administration* The latest GAO revelations — that hundreds of thousands of
Federal employees have signed lifetime pre-publication agreements; that more
than three million employees are potentially covered by such procedures; that
numerous agencies of the Federal Government have become self-appointed
"publishers" {more than 15,000 books and articles reviewed during 1983 alone);
and that all of the foregoing measures are being implemented in the virtual
absence of evidence of any injury to the national security arising out of

( 181 )

unauthorized disclosures of classified information — lead to the inexorable
conclusion that legislation such as H.R. 5866 is both appropriate and
critically necessary. Our two organizations, representing between them th*
vast preponderance of all traditional and scholarly book publishing, hold to
the view that this pernicious censorship program should be totally and
unequivocally withdrawn in all respects by the Administration, thus obviating
the need for legislation. However, the latest disclosures — revealing as
they do not merely the vast scope of the program but also the Administration's
lack of candor in dealing with the Confess and the public .aake clear that
there is no alternative but to proceed with curative legislation.

Thank you for giving consideration to the views of our two publishing
organizations .

Sincerely* \J\

\ J\

\ r, l

Townsend Hoopes, President
Association of American Publishers

I . \jLsr ^

Frances Gendl in, Executive Director
Association of American University
Presses

cc: Committees on Armed Services,
Judiciary and Intelligence

183

//SUP

THE ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC.

One Park Avenue, New York. N Y. 10016 (212) 889-6040

as at: 706 Ogden Avenue

Teaneck, New Jersey 07666
April 21, 1983

The Honorable Peter W. Rodino, Jr.

2462 Rayburn Building
Washington, D.C. 20515

pear Congressman Rodino:

It is ny understanding that the subcommittee on civil aid constitutional
rights of the House judiciary oaraiittee, of which you are chairman, has
been conducting hearings on President Reagan's Directive of March 11 on
"safeguarding national security information."

May I, on behalf of the 80 American scholarly publishers who constitute
our membership, express the most serious objections to a blanket Directive
of this kind? Its effect on current government officials with access to
classified information is to attempt to restrain than from expressing themselves
without citation on any sensitive issue, however remote from the national
security. Its effect on former officials is more dire than that: prior
censorship, in effect, of any of their writings, under the pretext of
protecting the national security. While no one, perhaps, is a First
Amendment absolutist, surely Justice Holmes's dictum about crying fire
in a crowded theater ought to apply here.

Caning closer to our neck of the woods, the university presses depend
on archival and direct disclosure, both in original manuscripts and
in attributions and footnotes, for their work in contemporary or recent
history and in political science. Public diplanacy, which is too high and
subtle an art to survive the kind of censorship necessarily entailed in
so vague a Directive, which is an affront to intelligence (in the several
senses of that word) and a violation of the Constitutional rights of
government employees as authors, cannot be conducted in the atmosphere
that such a secrecy order creates. Nor should Congress allow public diplomacy,
or what passes for it, to be the sole prerogative of the policy-makers
in the Executive branch at any historical juncture in the life of this Republic.

I cannot provide you or Congressman Edwards yet with a list of books
that would not have appeared had the Directive then been in force. (I understand
that such a list is forthcoming from the Association of American Publishers.)

Let me defer, instead, to two older voices, both humanists, both political men.
One is Thomas More's, who said of himself, "the King's good servant, but God's
first." The other is John Milton's, who did not wish for the "fugitive and
cloistered virtue" of the censor, and opted instead for unfettered truth.

These axe good political guides in the current situation.

I would be grateful to hear your Caimittee's recommendations as to what
to do about this appalling situation.

Yours truly,

Richard Koffler, Executive Director

cc: Rep. Don Edwards

184

Congress! of ifje ®n(teb states:

raafiljtnBfon. 53.C. 20515

■is

January 25, 1 9 8 if

Name
Address
City, State

Dear <Name>:

President Reagan, on March 11, 19^3, issued National Security
Decision Directive 84 (copy enclosed) which seeks to reduce the
unauthorized disclosure of classified information. Among other
things, the Directive requires that employees with access to
certain types of restricted information sign non-disclosure
agreements containing a requirement that the employee submit for
prepublication review all writings "which contain or purport to
contain" any restricted or classified information or "any
information concerning intelligence activities, source, or
methods." This requirement applies for the rest of the employee’s
lifetime.

The Subcommittee on Civil and Constitutional Rights of the
Committee on the Judiciary and the Subcommittee on Civil Service
of the Committee on Post Office and Civil Service held joint
hearings in April to explore the Directive and the need for it.

Our joint investigation into this matter continues.

As part of this effort, we are writing to request your assistance.
As a former government official who has published articles or
books concerning the issues you confronted while serving your
country, you can provide us with valuable insight into the need
for, value of, and problems with prepublication review.

Therefore, we request that you respond to the questions below.

Your answers will be valuable in the preparation of our report on
this issue.

1. Please Indicate the type of publications ) in which your
writing has appeared since you first left government service —

1. e., in books, newspaper articles, or works of fiction — and
whether the writing was related to your former government
employment *

2. What position(s) did you hold in the Federal government? For
what periods of time? Did you have access to classified
information in such position? Did you have access to sensitive
compartmented information (SCI) in such position?

3. What steps did you take to ensure that your publication (s )
contained no classified information? Did you submit your entire
publication for prepublication review or did you submit parts for
review? If you submitted only a portion of your writing for
prepublication review, on what basis did you decide which portions
to submit'?

THE ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, INC,

One Park Avenue, New York. N Y. 10016 (212) 889-6040

as at: 706 Ogden Avenue

Teaneck, New Jersey 07666
April 21, 1383

The Honorable Peter W. Rcdiho, Jr.

2462 Rayburn Building
Washington, D.C. 20515

pear Congressman Rodino:

It is ny understanding that the subcommittee on civil and constitutional
rights of the House judiciary committee, of which you are chairman, has
been conducting hearings on President Reagan's Directive of March 11 on
’‘safeguarding national security information."

May I, on behalf of the 80 American scholarly publishers who constitute
our membership, express the most serious objections to a blanket Directive
of this kind? Its effect on current government officials with access to
classified information is to attempt to restrain than from expressing themselves
without citation on any sensitive issue, however remote fron the national
security. Its effect on former officials is more dire than that: prior
censorship, in effect, of any of their writings, under the pretext of
protecting the national security. While no one, perhaps, is a First
Amendment absolutist, surely Justice Holmes's dictum about crying fire
in a crowded theater ought to apply here.

Coming closer to our neck of the woods, the university presses depend
on archival and direct disclosure, bath in original manuscripts and
in attributions and footnotes, for their work in contemporary or recent
history and in political science. Public diplomacy, which is too high and
subtle an art to survive the kind of censorship necessarily entailed in
so vague a Directive, which is an affront to intelligence (in the several
senses of that word) and a violation of the Constitutional rights of
government employees as authors, cannot be conducted in the atmosphere
that such a secrecy order creates. Noe should Congress allow public diplomacy,
or what passes for it, to be the sole prerogative of the policy-makers
in the Executive branch at any historical juncture in the life of this Republic.

These axe good political guides in the current situation.

I would be grateful to hear your Committee's recommendations as to what
to do about this appalling situation.

Yours truly,

Richard Koffler, Executive Director

cc:

Rep. Don Edwards

185

4. If you have submitted any writings for prepublication review,
what was your experience? To whom did you submit your material?
Were you requested to delete material from your work? Were you
permitted to show that the material was not classified? How long
did it take to review the material?

5. Based on your experience with the prepublication review
process, do you believe that expanding its use is the most
appropriate and effective means of preventing disclosure of
classified information?

6. The Directive requires all former government officials with
access to SCI Information to submit all publications, including
speeches and lectures, for prepublication review. Do you believe
that requiring such officials to submit only those portions of
writings which might contain classified information would be
equally effective?

We are, of course, cognizant of the fact that this is a very
hectic time for everyone. However, your earliest assistance in
responding to this request will be most appreciated since the
Committees believe it is important to conclude their inquiry.

Please indicate in your response if you prefer that your comments
be kept confidential; otherwise, they will be made a part of our
public record.

Helen Gonzales of the Judiciary Committee staff (226-7680) and
Andrew Feinstein of the Post Office and Civil Service Committee
staff (225-4025) are available to answer any questions you might
have about this request.

With kind regards.

Sincerely,

DON EDWARDS
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary

PATRICIA SCHROEDER
Chairwoman

Subcommittee on Civil
Service

Committee on Post Office and
Civil Service

Enclosure

186

Richard V. Allen Company

905 SIXTEENTH STREET, N. W.

WASHINGTON, D. C. 90000

January 30, 1984

TELEPHONE (202) 737-2824.

cable "rvallen'*

TELEX 710 822 114.3

Dear Congressman Edwards and Congresswoman Schroeder:

In response to your letter of January 18th, I am
pleased to provide answers to the questions which you have
posed .

1. My writings have appeared in books, newspaper
articles and my views have also appeared extensively in
interviews, divided almost equally between print and
electronic media. Nearly all of my comments have been
related to matters of substance during the period of my
government service, although there is natural linkage between
what I did then and the present. My published views have
been almost exclusively concerned with foreign policy,
national security, intelligence policy and international
economic policy and trade matters.

2. Over the years I have held the following
positions in government. 1969, Principal Associate and
Senior Staff Member at the National Security Council; 1971-
1972, Deputy Assistant to the President for International
Economic Affairs and Deputy Director, Council on
International Economic Policy; 1981-1982, Assistant to the
President for National Security Affairs .

In these positions, I had access to classified
information at virutually every level, including
compartmentalized (SCI) information.

3. As to the steps I took to ensure that
publications contained no classified information, I can say
that the rule of common sense applies. It is often difficult
to distinguish lower-level classified material from that
which is available in the public domain, but in no instance
did I submit anything for prepublication review.

4. This question is not applicable, in that I did
not submit any materials for prepublication review.

5. I have been involved with the prepublication
review process from the standpoint of a government official
reviewing the works of others. I believe that it is indeed
an appropriate and effective means of preventing disclosure
of classified information, if only because individuals find
it difficult to recall whether that which is contained in
their manuscripts of the materials is in fact classified.

187

Richard V. Allen Company

The Honorable Patricia Schroeder
The Honorable Don Edwards
January 30, 1984
Page Two

However, I also believe in (and practice) always giving the
benefit of the doubt to the writer submitting his work for
clearance; I think it is entirely possible that too much
"nitpicking" goes on in the process, and it is certainly
too slow.

6. If the Presidential Directive requires all
former government officials with access to SCI information to
submit all publications, then I would oppose the Directive.

I do indeed believe that only those portions of a writing
which might contain highly classified information ought to be
submitted.

If I may be of further assistance, please do not
hesitate to contact me.

Yoi^rs sincerely'; j

/ •/ /

c d'dt 1 <i i U.A 'Ll 7 ..

Richard V. Allen

The Honorable
Patricia Schroeder

2410 Rayburn House Office Building
Washington, D.C. 20515

The Honorable
Don Edwards

2307 Rayburn House Office Building
Washington, D.C* 20515

188

A. ARNOLD
19 HAYES STREET
NOVATO, CA 94947

January 24 , 1964

Committee on Post Office and Civil Service
Subcommittee on Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Ma dam/5i rs ;

The following answers are keyed to your questions to
me in your letter of January 16:

1. I have written two books and numerous newspaper articles
since leaving government service. All have dealt directly
or indirectly with Afghanistan, which was one of my posts
while in government service. Part of my duties there
involved keeping track of Soviet relations with the host
government; another part was attempting to follow Afghan
communist party activities. My two books written after
retirement ( Afghanistan ^ Th e Soviet Invasion 1 n Fersoect i v e
and Afghan j s t a n ' s Xw_e.-.Ra r t y. C.emiu uni s,m ^ Ears ham And. Kh.cXa >
dealt with a history of Soviet -Afghan relations and a
history of the communist party, respectively. They were
thus related to my duties wh i 1 e at this post. The newspaper
articles were similarly oriented.

2. From 1953 to 1979 I served with CIA in various
capacities. In Afghanistan C

had access to classified materials C

3 .. I am not familiar with the term
"sensitive comp a r tmen t e d information (SCI)."

1 I

189

4. I submitted my manuscripts to the Publications Review
Board of the Central Intelligence A q 2 n c y , which is attached
to the Office of General Counsel. They made no request of me
to delete material. They reviewed the material very
promptly, returning it to me within a week of its receipt.

5. This is an extremely difficult question on which to
generalize. My own experience has been very good, but I had
absolutely no i W-wi ] J toward my former employer. If I had
had such ill will and had expressed it in the book, it is
possible that the review board would have looked at it much
more closely CJL would have in their place), to detect any
possible leaks. This is an only natural defensive reaction.
Moreover, no review board made up of Washington-bound
attorneys is qualified to pass judgment on possible security
breaches concerning classified information about obscure
corners of the world like Afghanistan. To do a proper job
they would have had to call on help from both the Department
of State and the appropriate CIA desk, therebye detracting
from those units' abilities to fulfill their more-than-
demanding regular functions. -- Perhaps one alternative to
the requirement that a ] 1 materials be submitted to a
publication review board would be to leave this open to the
discretion of the author — but with such heavy penalties
for the unauthorized revelation of classified material that
no prudent man 'or woman would take the risk of publishing
borderline materials without official approval. An Official
Secrets Act with real fangs to it, such as exists in
Britain, might aid in this process. If nothing else, such a
philosophy would permit the responsible author to get on
with his work without delay; it would cut back on what
promises to be a new layer of bureaucracy in many agencies;
it would facilitate prosecution of transgressors (presumably
in closed courtroom circumstances, to avoid further
pinpointing of the classified information in question); and
it would probably not bring on any worse leakage than
already exists: a thoroughly embittered ex-employee with
classified information he wishes to publish has probably
revealed that information at least orally far and wide
before sitting down at a typewriter anyway.

6. After writing the above I realize that your question 6
shows you have already invented this wheel. In short, my
answer is a qualified Yes, the qualification being that the
penalties for slippage by the author/speaker be severe
enough that he has a profound incentive to take his
responsibilities for safeguarding classified information
seriously.

33-307 0-84 7

190

I am taking the liberty of forwarding a copy of this
reply to the Office of General Counsel at CIA, which
informed me some time ago that you might be getting in touch
with me. For the time being I would prefer that those parts
of paragraph 2 of this letter that are in brackets and the
paragraph that follows be deleted from any public record.

If I may be of further assistance, please do not
hesitate to get in touch. As an author I am aware of the
frustrations of not being able to have material released
that in my own view could be declassified without jeopardy
to sources or methods (in one case last year the Department
of State would not even let me see the full text of one of
my own airgrams from Kabul, for example). On the other
hand, as an ex-CIA officer I am even more keenly aware of
the penalties that can result from the careless or malicious
release of classified data. The valuable techniaues
rendered useless when the other side learns of them are bad
enough, but they can be replaced. The human lives lost
through similar slips cannot.

Anthony Arno 1 d

Sincerely

'Tv//.

191

FEB 13 1984

International Business-Government Counsellors, Inc.

1625 Eye Street. X.W.. Washington. D.C. 20006 • Telephone (202) 872-hlM • Telex: 410511 IBGC IT * Caiile: BCStJOV

I ✓

; February 9, 198 4
v ^ , ri » .

Mr. Don Edwards
Chairman

Subcommitte on Civil and
Constitutional Rights
Committee on the Judiciary
House Annex # 1
Room 806

New Jersey and C Streets , SE
Washington, D.C. 20515

Dear Chairman Edwards :

In response to your letter of January 18, 1984 below are
my answers to your questions:

1. Since leaving government service as of October 31, 1983
I have only published two articles in the Journal of Commerce .
They are related to what I was doing in the NSC to the extent
that they were on economic topics. I enclose copies.

2. I was Senior Director of International Economic Affairs
and Special Assistant to the President for National Security
Affairs. I was on the NSC Staff from April 1981 to October 31,
1983. Prior to joining the NSC staff I was a consultant to the
Office of Policy Development for about a month. I had access to
classified information.

3. As you will see, precautions were unnecessary. I did
not submit the articles for review.

4 .

Not

applicable

Not

applicable

6 .

Yes .

You may use these answers publicly if you wish,
they have been helpful in yourimportant work.

I hope

cc: Patricia Schroeder

Yours very truly,

Norman A. Bailey
Senior Advisor

Hrasst K • Cirmn.i * London • V.*u 7 orK • (maun • Paris

192

CHAIRMAN
Pelct A- Btidford

COMMISSIONERS
FUJph ILGcldcr
Cheiyl Hwrington

STATE OF MAINE

PUBLIC UTILITIES COMMISSION
242 State Street
State House Station 18
Augusta, Maine 04333
(207) 289-3831

January 24, 1984

Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and Civil Service
and

Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
U.S. House of Representatives
122 Cannon House Office Building
Washington, D.C. 20515

Dear Representatives Schroeder and Edwards:

Thank you very much for your letter regarding National Security
Decision Directive 84\ My answers to your specific questions are as
follows:

1. X have written several speeches and newspaper articles regarding
nuclear regulation since leaving the Nuclear Regulatory Commission.
Some of the speeches have since been published as part of conference
proceedings.

2. I was a Commissioner on the Nuclear Regulatory Commission from 1977
until 1982. I did have access to sensitive compartoented information
during that time.

3. I never submitted anything for prepublication review, either while
I was on the NRC or since. I simply avoided using any information
that had the slightest possibility of being classified. It is
really not difficult to avoid such disclosures in prepared remarks.
The only context in which disclosure seems to me to be even remotely
likely is in question and answer or debate-type formats in which
prior review is impossible anyway.

193

Representatives Schroeder and Edwards
January 24, 1984
Page 2

Questions 4 and 5 are not applicable,

6. I think that all prepublication review is a ridiculous mistake. It
will cost far more than it is worth. Abuse by censors determined
to further the interests of the administration in power or their
own personal predilections is virtually certain. The entire concept
seems to me to be inconsistent with basic American principles.
Indeed, I think it may be a clever Communist plot to discredit
security through overzealous pursuit of counterfeit security. The
Administration has already fallen victim to a similar plot with
regard to its efforts to promote nuclear power.

I would urge that you prohibit this entire ill-considered venture.
Please let me know if I can be of any further assistance.

Sincerely,

Peter A. Bradfot

PAB/mra

194

The Middle East Institute
1761 N Street ,N W.
Washington. D. C. 20036

L. Dean Brown
President

January 26, 1984

The Honorable

Patricia Schroeder

Chairwoman, Subcommittee on Civil Service
Committee on Post Office and Civil Service
U.S. House of Representatives
122 Cannon House Office Building
Washington, D. C. 20515

Dear Mrs . Chairwoman :

This letter is in response to your letter of Janu-
ary 18 concerning NSDD 84. The answers are keyed to the

questions .

1. Newspaper articles via interviews or pieces for OP-ED
pages, book reviews, speeches at conventions, seminars,
discussions groups, etc., which were carried by media or
reproduced for distribution, articles for corporate publica-
tions. Much of what was written was based on 30 years ser-
vice as a Foreign Service Officer. Subjects have been
primarily Mid-East oriented.

2. 1973-1975 Deputy Undersecretary for Management in State
Dept. Earlier Ambassador to Jordan, Senegal and Gambia.
Since retirement in 1975 called back for special assign-
ments; for example, Director of the President's Task
Force for Indochina (1975) and Special Envoy to Lebanon
(1976) . I was a consultant to the State Department 1975-
1983.

I had the usual top clearances including SCI.

3. In public lectures or meetings x have cited only already
published material. There's a wealth of that. I have
never believed it necessary to seek prepublication reviews.

4. As noted, I do not believe I have ever written anything that
required prepublication clearance.

5. No comment.

- 2 -

January 26, 1984

The Honorable

Patricia Schroeder

6, It would be impossible to create a bureaucracy which could,
in timely fashion, screen lectures, articles, and comments.
Such a requirement levied on ex-holders of SCI clearances
would force them to cease all activities of a topical nature.
It would rule out, for example, OP-ED articles which usually
have a deadline of less than 24 hours. Former public servants
have to be trusted enough so that they — mindful of their
responsibilities — self-screen infractionsof a sensitive
nature .

You may use this material as you wish.

Sincerely

196

Dewey, Ballantine, Bushby, Palmer & Wood

177S PENNSYLVANIA AVENUE, N.W,
WASHINGTON, D.C. 20006

JOSEPH A, CALtrAHO, Jfl.
PHILIP W. feUCMCM
O* NlLt BELL
HUOH N. rAtCR

rcux m r lauohlin

JOHN H, ftAMUCl*"

ntCHAno cotton

LAWRENCE LO'UmCH.ra
LARRY S, OAOC
OCHALO M. HOftBCPVO

PCI HI ENT p^llt HER*

7CLCPMSaE;{20?> U6MOOO 140 BROAD RAY, NEW TOM, AYlOOOt

Facsimile*: (goal 0 CM09 5 101 PAR* AVENUE, new YORK. M + t. IQltB

telephone: (ii ti be 0*1100

Tilt*: II BBIft (OOKJ HOItlllNf J
FACSIMILE*: UltJ

UOQB PARIS, FRANCE

ritfMOPt no.ii.ii

wi AOMinto ac.

January 23, 1984

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service

122 Cannon House Office Building
Washington, D.C. 20515

Dear Pat:

This is in response to your letter of January 18,
1984, concerning National * Security Decision Directive 84.
While I have written articles and books about my government
experiences, I have never been involved in the pre-clearance
process (although I worked in the Department of Defense from
1961 to 1965) .

Sincerely,

Joseph^A, Calif ano, Jr.

197

RICHARD C. CSAPLAR. JR.
JOHN F BOK
DONALD BECKMAN*
FREDERICK GOLDSTEIN
ROGER L. ELLISON
PAUL J. MCNAMARA
LEWIS A. BURLEIGH
PETER W BRADBURY
ANTONIA HANDLER CHAVES
ARNOLD R MESSING
THOMAS H. TRIMARCO
ROBERTA. S SILBERMAN
WILLIAM C- STONE
GEORGE A. PAGE. JR.

RICHARD HIERSTEINER
JAMES H. BELANGER
STEVEN L. PAUL
BARBARA J. ROUSE
JOHN G. WOFFORD
GEORGE E CURTIS
DENNIS W. TOWNLEY
MARGARET H MARSHALL
KATHRYN COCHRANE MURPHY
CYNTHIA J. WILLIAMS
JOELW. MESSING*

'ADMITTED and resident

IN PA ONLY

CSAPLAR & BOK

ONE WINTHROP SOUARE
BOSTON, MASSACHUSETTS 02110
(S17) 3S7-AAOO
TWX 7)0*3 2 1-7 52A

April 18, 1984

THC RUSS BUILDING
235 MONTGOMERY STREET. SUITE -430
SAN TRANCISCO. CALIFORNIA 94ICM
(419)362-7000

1600 MARKET STREET. SUITE 3319
PHILADELPHIA PENNSYLVANIA 19103
(219)397 B977

COWARO W BROOKE
CARL E. HEILMAN
COUNSEL

Honorable Patricia Schroeder
Chairwoman

Committee on Post Office and Civil Service
Subcommittee on Civil Service
122 Cannon House Office Building
Washington D.C. 20515

Dear Pat:

I am sorry that I have been so slow to reply to your
request of February 29. It has been an unusually hectic season.

Let me try to answer the questions that your letter

poses .

1) The only publications I have had have been Op
Ed pieces in the Christian Science Monitor. However, I have
been doing research for a scholarly article, and I have been
teaching a course in the law doctrine and politics of nuclear
weapons management for three years at Harvard, and I need to
rely on materials that I worked on in the government.

2) X was the under secretary of the Air Force from
1979 until the end of the Carter administration in 1981. I
was assistant secretary of the Air Force from 1977 to 1979.

I had access to classified information, including SCI in both
positions.

3) I have used my own good judgement in dealing with
classified information. I did not take any classified information
with me, and I know quite well what information I may use and
otherwise. I have not submitted any publication for review
nor do X think that, except in case of the authors doubt, this
is a very good idea.

198

CSAPLAR & BOK

Page 2

April 18, 1984

Honoarable Patricia Schroeder

4) Not applicable.

5) I don’t think that expanding the use of prepublication
review is a very good idea. If the government feels it is necessary

to require former government officials with SCI previous classifications
to submit publications, there have to be clear standards that all
that will be censored is actually classified information. There
can be no censorship of policy issues, or criticisms of policy.

The problem I have with such review, is that it tends to get into
grey areas where, in an excess of zeal, the censors are likely to
go beyond the very limited mandate. There should be an administrative
review and a chance to appeal any matters of disagreement between
the author and those people performing the prepublication review.

There have been a number of very eloquent and critical v
editorials on the subject, and I tend to agree with them. While
I believe that we have to preserve the security of information,

I think that any prior censorship raises serious constitutional
questions. Nor does it prevent the leaks about which the administration
is so concerned.

Please let me know if I can be of any further help.

And if this letter actually gets to you, Pat, a very warm hello.

With all best wishes.

Sincerely,

Antonia Handler Chayes

199

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Georgetown University/ 1 800 K Street Northwest/ Washington DC 20006 / Telephone 202 887-0200

V\'X 710822958'i Gable Address CENSTRAT

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February 17, 1984

The Honorable Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service
House of Representatives
Washington, D.C. 20515

Dear Chairman Edwards and Chairwoman Schroeder:

SENIOR RESEARCH STAFF

'bi*. bTmtj-

I am responding to your letter of January 31, 1984 concerning
National Security Decision Directive 84. My own experience is
unlikely to be entirely representative of the normal pattern since
T spent so many years in government and write extensively on
intelligence subjects. I would therefore prefer you to keep my
comments confidential.

My answers can be very brief.

I write a great deal and have published books, newspaper columns,
and scholarly articles. Specifically I wrote Secrets, Spies, and
Scholars , updated several times — the last edition being entitled
The CIA: Reality Versus Myth . Obviously these books related to
my government experience, which included duty as Deputy Director for
Intelligence, CIA (1962-66) and Director of Intelligence and Research,
State Department (1969-1973). In my 31 years in government I had
access to classified information most of the time and during a great
part of it access to the most sensitive compartments.

Since I worked in classified fields so much, I think my judgment
on classified content is about as good as any. Nevertheless my books
V - were submitted for prepublication review to CIA. Naturally I had

"\h.1 almost no* pf obi eras and easily adjusted a few pieces of terminology

UHwtiu.-.i.. which troubled my reviewers.

Despite my generally happy experience with the review and clearance
process, 1 think the new procedures are too extensive and likely in
practice to be so cumbersome that they break s‘.own and tie up the
system. I think the present more liberal requirements for review are
quite adequate and should not be extended :,n way** that will jeopardize
the good will and sense of responsibility for security that most former
employees have.

‘"“““VeL S.

Ray S. Cline A

Senior Associate

200

Office of the Director

UNIVERSITY OF MINNESOTA

TW/N CITIES

Hubert H. Humphrey Institute of Public Affairs
909 Social Sciences
267 19th Avenue South
Minneapolis, Minnesota 55455

(612) 376-9666 or (612) 373*2653
February 22, 1984

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and Civil Service
122 Cannon House Office Building
IKS. House of Representatives
Washington, D.C. 20515

Dear Pat:

I am glad that your subcommittee, and that of Don Edwards in the
Committee on the Judiciary, are looking into the Reagan Administration’s
proposed Directive on the unauthorized disclosure of classified information.

I have served in the federal government in several incarnations,
most recently during the 60s as Assistant Secretary of State for
International Organization Affairs and as U.S. Ambassador to N.A.T.O.;
in the 70s as Chairman of the U.S. Weather Modification Advisory Board.

All of these assignments have stimulated a good deal of writing, and
everything from op-ed articles to books. No fiction, though; the reality
was interesting enough.

I did of course have access to classified information, particularly
in the State Department and N.A.T.O. assignments. Several years ago
I was asked by the CIA to give a public lecture to CIA employees and
other members of the intelligence community in Washington. What I then
said on the subject is an attachment to this letter.

It Is not easy to judge whether information contained in one's
writings would still be regarded as classified some years after the fact.

But the reason for this uncertainty is not the difficulty of deciding
what should still be kept secret. It is the fact that the government
classification system is regularly used to cover up information which
might be potentially embarrassing to senior burearcrats or political
appointees, or even to elected officials, and that therefore the writer
has to make a distinction between information that is classified for
reasons other than national security, and information which is truly
national security-sensitive. Under these circumstances, I have used my
own judgment, viiich I regard as at least as accurate as that of the
people hired to protect the classification system, and most probably
better, since I know more about the sensitiveness of the issues I am
writing about than they do. I have deliberately withheld a number of
facts (and opinions expressed while I was a government official) on the
basis of the judgment that to write about these matters might, even later,
damage the U. S. "international posture, international security, arras
control, and other diplomatic relationships.

202

From;

Minneapolis Star and Tribune
Saturday, February 18, 1984

A welcome retreat from

President Reagan has backed away from a propos-
al to plug national-security leaks by means that
were more likely to Intimidate civil servants than
to enhance security. But the retreat seems inspired
less by concern for openness than by hopes that a
reluctant Congress will accept a softened version of
the plan. Congress should not be swayed.

tn a directive last March,' Reagan proposed two
new tactics to safeguard government secrets: The
first would impose lifetime censorship on federal
employees with access to classified information,
requiring them even after leaving office to submit
anything they write for prepublication government
review. The second would, force any employee
suspected of leaking secrets to take a He detector
test; those who refused could be fired.

The directive’s supposed purpose was to protect
national security. But lawmakers who studied it
found little logic in the plan. They realized that the

censorship

order would cover fiction, satire and opinion arti-
cles as well as secrets. And they asked what harm
the plan was intended to prevent — something the
administration has been unable to explain. ■

Congress recognized the president’s directive to be
censorship in security’s clothing. By forcing thou-
sands pf past and present federal employees to
seek permission before speaking out, , the plan
would grant considerable power to a sitting admin-
istration to determine what citizens can read and
hear. Such a system would subyert the open gov-
ernment essential to democracy.

Alarmed, Congress voted last fall to suspend the
plan while reviewing its constitutional implications.
Now the president has decided to forgo a losing
battle in favor of negotiation. A reasonable opening
— and concluding — congressional negotiating po-
sition would be: Junk the March proposal entirely.

The Honorable Patricia Schroeder
February 22, 1.984
Page 2

201

1 emphatically do not believe that the ponderous judgment of
security officials with (inevitably) a limited sense of history can
make those judgments as well as responsible former officials, now
become authors, can do. This is obviously a matter of opinion. But I
would invite anyone wishing to test the proposition to read four books
of mine, and then testify whether there is anything in them which
constitutes a damaging revelation of a secret which still needed to
be kept secret. The books are: The Obligations of Power (Harper and

■Row, 1966), written while X was in government employ; NATO : The
Transatlantic Bargain (Harper and Row, 1970) ; The Future Executive:

Guide for Tomorrow's Managers (Harper and Row, 1972) ; and The Third Try
at World Order: U.S. Policy in an Interdependent World (Aspen Institute
for Humanistic Studies, 1977).

My views on prepublication review are not really printable in a
family magazine such as the Congressional Recoi’d. The answer to
questions about prepublication review are almost always bound to be,

"don’t publish it." .People who would review such manuscripts are
rewarded for prevention of publication, not for exercising their discretion
to permit publication. The dynamics of such a system would indeed
constitute the kind of censorship which is contrary to the very purpose
of the United States, as expressed in the Declaration of Independence and
many documents thereafter. If the Directive is seriously intended to
apply to people who served in the government in earlier administrations,

I can only express opinion that such a retroactive Bill of Retainer is
clearly unconstitutional, in the absence of a showing it would damage
our present security — as differentiated from the comfort of whomever
happened to be in power at the moment.

I hope these comments are helpful. It is a subject on which I
would be glad to testify.

I am sending a copy of this letter to Representative Don Edwards,
the co-signer of the letter that asks for them.

Warmest regards.

Sincerely,

Harlan Cleveland

HC: je

cc: Representative Don Edwards

P.S. A recent editorial in the Minneapolis Star and Tribune captures
very well my own view of the matter. It reports that President
Reagan is retreating from the Directive referred to in your letter,
and "has “decided to forgo a losing battle in favor of negotiation."
The principle involved is not very negotiable, I hope that Congress
retains both its skepticism and its sense of humor in getting the
proposals of March 1983 discarded altogether.

H.C.

203

THE ANTIDOTE TO SECRECY
by

Harlan Cleveland

Director, Aspen Institute for Humanistic
Studies, Program in International Affairs

Delivered as a Guest Lecture
to Employees of the
Centra! Intelligence Agency
Langley, Virginia

May 10, 1977

204

NOTE

This lecture adapts to the CIA audience a line of thinking developed at greater
length in two previous writings by Harlan Cleveland:

. The Future Executive (New York: Harper & Row, 1972), especially
Chapter 8.

. "The Limits of Obsession: Fencing in the 'National Security' Claim"
(Stuart Gerry Brown, co-author), Administrative Law Review , Summer
1976 (Volume 28, No. 3L

205

THE ANTIDOTE TO SECRECY

The sponsors of this extraordinary lecture series asked me only two questions.

One was whether they should address mail to my home — in case I didn’t want my colleagues
in the office to know that I was doing business with the CIA. For reasons that will be
clear from what I am about to say to you, I replied with some version of Ralph Waldo Emerson's
dictum: "If you would not be known to do anything, never do it."

The other question was what 1 should talk about this afternoon. To that ques-
tion, the CIA provided not only the question but the answer: Would I address myself
to the ethics of secrecy? What an irresistible invitation — to speak of ethics in the citadel
of secrecy!

So here I am, to air some doubts and analyze some dilemmas that every one
in the intelligence community shares, whether you know it or not, with public servants
in hundreds of other professions in public and private employ.

I come to you as a sometime practitioner .but mostly a consumer of intelligence.
During World War II, as a young recruit in the Board of Economic Warfare, I was told
that we were about to invade Sicily but that someone had forgotten to calculate the
food requirements of the population after we (hopefully) had conquered them. As an
enthusiastic sailor I had always assumed that the Office of Naval Intelligence was the
most dependable source of secret information, so 1 hurried to ON! and asked to see the
file on "Sicily-Food", Such a file did exist. But the latest entry — this was in 1943
— was an unclassified consular report, dated 1923. The rest of the intelligence community

206

was not much better prepared. What you collect depends on what you think will be impor-
tant, and the invasion of Sicily had not been among the long-term objectives of U.S.
foreign policy.

As a consumer of intelligence, I have much more experience, but it has left
me with equivalent doubts. I was Assistant Secretary of State and Ambassador to NATO
for more than eight years, and privy to the product of countless clandestine operations,
including large numbers of intercepts. Reading other people's mail and listening in on
their party lines are among the most titillating of human activities; that's why peep shows
and sex shops are such a thriving addition to our Gross National Product. But I have
to confess in retrospect that I do not recall a piece of clandestine information that made
such a big difference in my perception of international politics, gained from other sources,
that it was worth the risk of getting caught procuring it.

I am quite prepared to concede — indeed, to hope — that the game is worth
the candle more often than my limited consumer survey would indicate. It is on this
assumption, in fact, that I will discuss, first, the nature of public secrecy, and second,
what standard of personal ethics you and 1 can depend on in an environment of public
responsibility, where not everything can be open and some secrets have to be kept, at
least for a time.

207

ii.

I don’t know anyone, in or out of the intelligence community, who would not
agree that Federal secrecy is now overdone. On August 21, 1973, a few days before
he resigned as Secretary of State, William P. Rogers said it in his gentle way: "It is very
important for the United States not to become so obsessed with security matters that
laws are freely violated." (When 1 read that in the newspaper the next morning, I confi-
dently predicted over breakfast that those were the words of a man about to resign from
the Nixon Administration.) But earlier, in a less philosophical mood, Secretary Rogers
had told the Senate Foreign Relations Committee what to expect from executive agencies,
"It would be very helpful," he earnestly said to the Senators, "if you would ask yourself
what it is that you would do differently than we are doing, keeping in mind that you may
not know what we are doing."

The latest estimate I have seen, a 1975 guess by the Interagency Classifica-
tion Review Committee, is that 20 million government documents bear classified mark-
ings — and that more than 15,000 government employees possess the authority to classify.

This massive structure of official secrecy rests on two dubious propositions:

(a) the fewer the people who know, the greater the security; and (b) only those should
know who "need to know". The trouble is simple: The crucial determinations — who
is in the know and who is out — are made by the first possessor of the secret, on his essen-
tially unreviewed judgment about the requirements of national security.

One consequence is to deprive the national legislature of its policy function
on whatever the President and his advisers decide to handle alone. Congress is said to

208

be much too large a boo/ to be trusted to keep secrets — though the White House staff
is larger. To maintain a show of cooperation the Executive keeps a few members of
Congress informed, especially those who control the funding of the intelligence agencies.

If most members of Congress do not know the facts, if follows that they cannot be mean-
ingfully consulted on policies derived from analysis of the facts. That makes the Execu-
tive less accountable on precisely those issues most likely to be matters of life and death
for Americans at large. "Separation of powers" in national security matters means separating
Congress from the power to make policy.

Within the Executive Branch, secrecy also redistributes the power to affect
policy. The "intelligence community" produces facts which are closely held. They can
be interpreted -- and consequent policy recommendations, made — only by those who
know the facts. Since the intelligence people are among those in the know, they can
come to have a disproportionate influence on policy as compared with "policy-makers".

The doctrine of "the fewer who know the greater the security" is seductive.

On its face it makes sense, but decision-making about complex national security matters
produces grotesque results so often that there must be something wrong with the picture.
Some examples from recent history show how badly the principle works in practice:

The Bay of Pigs fiasco resulted directly from insufficient candor in
too small a group — some members of which, according to a former mem-
ber of the Joint Chiefs of Staff, thought that in the presence of the new
young political hero they "should speak only when spoken to." ... At the
U.N. General Assembly, Ambassador Adlai Stevenson was defending the U.S.
non-involvement in the "refugee" raids on Cuba. He asked Washington for

209

the true story, arid the CIA provided the State Department with a false
"cover story" which Stevenson used his global credibility to trumpet as the
truth.. The cover blew off in less than 24 hours.

During the first few days of the Cuban Missile Crisis, only fourteen
peopie were let in on the secret. During this period proposals to overreact
by "surgical" air strikes were taken seriously in the small in-group. It was
no accident that a more moderate (and certainly more effective) policy pre-
vailed after a second tier of staff people had been brought in to sift the op-
tions and illuminate the risks, costs, and benefits.

In the period after 1965 the circle of trusted Presidential advisors run-
ning the war in Vietnam was progressively narrowed, and the war policy got
progressively more out of touch with public and Congressional opinion, or
even with staff-level reactions in the Executive Branch. Only when Presi-
dent Johnson, in early 1968, rather suddenly widened the circle of consulta-
tion, even seeking the views of known opponents, did he sharply alter course.

A matter so vita! to the conduct of foreign policy as the decision to
deploy anti-ballistic missiles was decided without consultation with NATO
allies on even the U.S. Department of State; together they learned about
a new American policy from news dispatches of a speech by a Secretary of
Defense in San Francisco.

In the Nixon years, the damage caused by failures of presidential con-
sultation — on Cambodia (3,630 secret air raids between March 1969 and

210

May 1970), on the tactics of rapproachement with Peking, and on the world-
wide military alert in 1973 — is still fresh in the memory of Americans, and
of Japanese and European allies as well.

During the Kissinger era, the delegation head responsible for negotiating
strategic arms limitations with the Soviet Union apparently did not "need
to know" that the White House had already agreed to a fallback position.

He continued to bargain hopelessly for what had already been surrendered,
while his opposite number on the Russian side of the table already knew that
a deal had been made at higher levels.

211

in.

The notion that secrets should be limited to those with a "need to know" has
at least three defects. One, as I have suggested, is that those who already know make
the need-to-know determination. They can scarcely be expected to welcome to their
charmed circle potential heretics within the Executive Branch, or potential critics and
opponents in Congress and the country.

A second defect is that the "need to know" doctrine is extremely corruptible.
Once the system permits the President and hts agents to decide who should know what
about executive intelligence and operations, it is overwhelmingly likely that government
officials will use the system to hide their mistakes and their debatable judgments from
colleagues, subordinates, inspectors, controllers, Congressmen, courts, and constituents
by deciding that none of those have a "need to know". The opera bouf fe of the White
House tapes bears witness.

A third defect of the "need to know" doctrine is even more basic: it inhibits
asking the underlying question whether secrecy in a particular case serves the national
interest anyway.

Being let in on a secret is a status symbol — in small-town gossip, in inter-
national diplomacy, or in Washington politics. If you are favored with a confidence,
you are likely to be among the last to question whether the confidence really needs to
be confidential, since your "inness" depends on its confidentiality. Those to whom the
secret is not whispered are much more likely to call for openness, candor and partici-
patory process.

212

Yet in our most famous cases of crisis management, even some of the crisis
managers now question procedures that automatically equated national security with
the need for secrecy. "Unhappily," says Nicholas Katzenbach, "secrecy in foreign af-
fairs — and particularly in the atmosphere we have lived in for the past 25 years — is
easily rationalized. Yet the reasons seldom have much to do with the rationalizations.

In recent years, at least, the real motive has been precisely to avoid the difficulties
inherent in our political system and hopefully to present the public with triumphant
foits occomplls ."

In retrospect it appears that the insistence on secrecy in crisis management
has often been the product not only of presumed military necessity but also of the de-
sire of a president or his staff to avoid being scooped on an important policy announce-
ment — a natural human motivation, but not to be confused with the nation's security.

In three of the coses mentioned above -- the discovery of Russian missiles in Cuba in
1962, the President's intent to visit Peking in 1971, and the U.S. effort to prevent a possible
unilateral Soviet intervention in the Middle East in 1973 — it is now doubtful that elaborate
measures to maintain secrecy until the President was ready to go on television served
any higher purpose than to enhance and personalize the drama of the President of the
United States in action. They served that purpose very well indeed. But from whom
were the secrets kept? In 1962 the Russians knew the misssiles were there. In 1971
the Chinese knew that Nixon was coming to call. In 1973 the Russians had been told
that we did not favor their apparent intent to send armed forces to the Mideast. Those
kept in the dark until a television drama could be arranged included, respectively, our
Western Hemisphere allies in 1962, our Japanese and Korean allies in 1971, our NATO
allies in 1973 — and, in all three cases, the governed in America.

213

In the 1962 case, the drama was so great that it induced almost immediate
hemispheric and domestic support for the President's policy. Yet without secrecy that
support might well have been available from the start. In 1971, the drama was very
costly in U.S.-Japan relations. In 1973, the President’s decision to call a global military
alert with no At lantic consultation drove a wedge into NATO unity which was then fur-
ther pierced by European unwillingness to coordinate with Washington on Arab oil policy.
Were the histrionics of personal presidential diplomacy worth the transpacific, trans-
atlantic and hemispheric heartburn they caused — and are still causing?

If the costs of secrecy in the name of national security can so readily out-
weigh the benefits even in crisis situations, it is even more important in the day-to-day
politics of domestic and international policy-making to make sure, as Katzenbach suggests,
that rationalizations of secrecy are not substituted for the reasons. One of the lessons
from Watergate is, surely, that public officials are well advised to apply even to their
secret actions the test of how they would look if scrutinized in public; so many secret
actions do become widely known sooner or later anyway. The cautionary principle is:
if the validity of your action depends on its secrecy, watch out ! Perhaps this warning
should be inscribed on the wall of the White House Cabinet Room where the National
Security Council meets in times of tranquility and ad hoc advisors to the President gather
in times of crisis.

214

IV.

But perhaps it should also be engraved on our own persona! and nontransfer-
able hearts. Maybe it's too easy for us to sit here and feel superior to the high officials
who somehow thought they were invisible, even as they were recording on tape the highly
visible sentiments that would bring them down and throw them out.

Let us therefore consider a more difficult question: how you and I, in our
secret personal decisions from day to day, can tell whether we are acting as ethical human
beings, and not as robots responding to an organizational ethic we have not presumed
to review. And don't tell me that you're not interested because you don't work at the
policy level. Remember, instead, Paul Appleby’s definition of policy as "the decisions
that are made at your level and higher."

Consider, for the illumination it casts on the ethics of secrecy, this fragment
of American cultural history:

During the time when Charles Van Doren was pretending to be an intellectual
giant on a rigged TV quiz show, and before he was caught in the act, he and his legiti-
mately famous father, Mark Van Doren, were chosen as "The Father-and-Son Team of
the Year" by the National Father's Day Committee. The grateful remarks that father
and son made in accepting the award, read through the hindsight of Charles' later con-
fession that his televised brilliance was a hoax, take on the quality of prophetic wisdom.

215

Father was the first to speak. Our later knowledge leaves his words untar-
nished:

I claim no credit for [Charles'] being what he is . . . people make their
own intellectual and moral characters. If he was helped in making his by
me ... it was he who decided to accept the help. The decision in such mat-
ters is finally with ourselves. To say that responsibility begins at home should
mean, 1 think, that it begins — and ends, too — in the individual. Sooner or
later he must help himself. There are no alibis.

Charles Van Doren then rose to accept his public's accolade, and spoke of

his father.

. . . He has been able to move me, to laughter and to tears, for as long as
I can remember.

Both in public and in private — * and that's of the greatest importance.
For my father has been, to me, both a public and a private man. Oh, per-
haps not as public a man as I have become recently. We have laughed about
this, he and I * . , .

But, my experience has reminded me of something that he taught me
— not consciously, I’m sure, but as an example. For the extraordinary thing
about my father is that his public face and his private face have been the
same. He has been the same man to the world as he has been to his family.
And that [said Charles Van Doren] is harder than it sounds. It is the very
definition of integrity, I suppose.

216

The quality of public ethics in our time and place rests in the first instance
on the moral sensitivity, the political antennae, and the internalized standards of hun-
dreds of thousands of public servants in thousands of public and "private” organizations.

We are all, in some sense, responsible to the general public.

This is a hard doctrine. Each of us is already carrying around a wide assort-
ment of tugs and pulls on his or her conscience — family ties, loyalty to many organi-
zations (neighborhood, church, commune, volunteer agencies, schools, professional asso-
ciations, as well as "the job"), professional ethics, personal ambition, personal health,
and personal convictions about life styles. Now we add to this already complex moral
burden an elusive responsibility to an often apathetic general public. And we say that
in consequence the public interest must be first defined for each person by that person,
for each situation in that situation.

I observe that in facing practical problems many people still think there must
be some formula, some overriding principle, some universal criterion of judgment and
action which is objective' and ascertainable: "Didn't he know that what he did was against
the public interest?" But you know that there is no ethical realm, let alone a book about
ethics, from which the individual faced with complex judgments can pluck the answers
to the questions with which he faces himself. And paradoxically, the more complex things
become, the more personal the ethical judgments have to be. Cultural pluralism, diffu-
sion of power, and horizontalness of decision-making require us to think of the public
interest not as a code of ethics for the world, or for the nation, or even for a single or-
ganization, but as a nontransferable way of thinking developed by each public servant
for his or her own use.

217

In practice this way of thinking is compounded of the perceived standards
of others, moldeid to fit one's own experience in trying to apply those standards to real-
life problems. We start by deriving our "deep-down" feelings about public responsibility
from our early environment — from family and school and church, from the organizations
with which we are perforce associated, from heroes and friends and villains and enemies.
Then as we gain more experience, we develop our personal notions of what is right and
wrong from the injustices we see practiced or find we are practicing ourselves, from .
the examples we see of social and antisocial behavior, from reading and listening, from
experimenting with personal leadership. After a while, each person's ethical system
is at least a little different from anyone else's. (The disagreements we call politics;
if they are violent, we call them revolutions.)

As in the evolution of law, precedent and precept are some help. An analysis
of the exercise of public responsibility in some historical situation, where we now think
we know most of the relevant facts, may aid in solving tomorrow's similar (but never
identical) problems for ourselves; hence the heavy use of "case method" teaching in law
schools, business schools, and schools of public affairs and administration.

Wise sayings from Mencius and Aristotle, the Bible and the Founding Fathers,
not to mention our own parents, may likewise be useful but hardly controlling; with a
little help from a concordance of the Bible or Bartlett's Familiar Quotations , it is all
too easy to find some pseudo-scriptural basis for whatever one really wants to do. New
principles do not need to be written, by the public servant or his ghost writer; they all
seem to have been uttered already by Old Testament prophets, Chinese and Indian sages,

218

the teachers and saviors of the world's great religions, the ancient Greeks and the early
Christians. But they do not of course provide much guidance on what to do next — how
to cope with riots and poverty and discrimination, whether to deploy an ABM system
or build another office building, what to do and who should do it in Berkeley and Newark
and Angola and Vietnam, whether to tap someone's phone or rifle his files if the White
House tells you it's all right. They are even less helpful in deciding how to chair a committee
meeting or whether to hire Miss Smith. Some of our forefathers' wisdom may even be
part of the problem. Pollution, urban decay, and the weapons of frightfulness are pretty
directly traceable to the Age of Enlightenment.

Each of us, ethically Independent individuals, thus has to apply to the reality
around us the notions about procedure which we have gleaned from our own study and
experience. But the most conspicuous component of that reality is the presence of other
ethically independent individuals who are applying their differing criteria to our behavior.
This reguires us to develop judgments about the motivations of the publics in whose in-
terests we presume to act, those same publics which will ultimately judge whether we
measured up to a minimum standard of public responsibility for our time, place, and
function.

In these circumstances a written coderof ethics can never be comprehensive
enough or subtle enough to be a satisfactory guide to personal behavior as a public ser-
vant. Louis Hector, a lawyer who served on the Civil Aeronautics Board, nut it succinctly:
general prescriptions, whether in the form of do's or don't's, are bound to be "so general
as to be useless or so specific as to be unworkable."

219

Locking an affirmative code of ethics, I developed while I was working In
the Federal Government a key question to ask myself just before getting committed
to a line of action. The question was designed to reflect both the judgment which people-
in-general might later make on my behavior and my own reaction in the face of that
judgment. The question still seems to me well designed to compel rne to project my
own feelings in the dramatic rehearsal of imagined public scrutiny of my actions, and
the procedures by which they are decided.

The question is not "Will I be criticized?” If I am operating in the area of
public responsibility, the answer to that question is quite likely to be "Yes". The (to
me) illuminating question is this:

M lf this action is held up to public scrutiny, will I still feel that it is

what I should hove done, and how I should hove done it? ”

1 won't insult your intelligence, or your cultural memory, by applying the
lesson to the Watergate affair. Suffice it to say that if Nixon, Maldeman, Ehrlichman,
Mitchell and Co. had asked themselves the "will I still feel" question, they would not
now be in the trouble they are in.

Indeed, if those involved had asked themselves this question and answered
it honestly, most of the famous instances of public corruption which enliven and debase
our political history might never have happened.

220

Sometimes the issues are large — incestuous relations between the military
services and their contractors, major diversions of public monies to private purposes.

Teapot Dome and Dixon-Yates come readily to mind. But the human drama and pathos
are not in the cases of international profiteering, but in ethically opaque behavior by
upright men so confused by public complexity that the distinction between right and
wrong gets blurred along with the line between ’’public" and "private”.

If General Harry Vaughan in the Truman White House had asked himself whether
the transaction depended for its acceptability on its not becoming public, he would never
have accepted the deep-freeze that helped defeat the Democrats in 1952. If Sherman Adams
in the Eisenhower White House had not considered his relations with Bernard Goldfine
an untouchable private affair, he surely would not have stained his Image of New England
rectitude by accepting the gift of a vicuna coat. When Bobby Baker was trading Sena-
torial influence for business opportunities, did he think his powerful sponsorship made
him Invisible? When Harold Talbott wrote endorsements for his private management
firm, using his official stationery as Secretary of the Air Force, only the public outcry
and his consequent dismissal seemed to illuminate for him the ethical issue involved.

Supreme Court Justice Abe Fortas, whose reputation as a lawyer was built by purveying
sound and sensitive advice to clients operating in the no-man's land of public/private
enterprise, could not have banked a fee from a stock manipulator if he had asked him-
self the "will I still feel" question. Vice President Agnew might have reached less eagerly
for that plain envelope full of greenbacks if he had asked himself, "I wonder how this
transaction would look on the 6 o'clock news tonight?"

221

Until the Watergate affair surpassed all previous records, the limiting case
of ethical opacity was recorded shortly before an Assistant Attorney General,

T. Lamar Caudle, drew a jail sentence for corruption in a former job as United States
District Attorney in North Carolina. Caudle, according to Senator Paul Douglas of Illinois,
"testified that he used to leave the side window of his automobile open when he parked
it, and that he was always surprised by the wide variety of presents which were generously
and anonymously thrown into the back seat by unknown admirers and friends."

"If this action is held up to public scrutiny, will I still feel that it is what
I should have done, and how I should have done it?" if a TV cameraman had been taking
pictures at My l,ai that day, would Lieutenant William Colley have killed those Vietnamese
civilians huddled in the ditch? War diffuses the responsibility for life-and-death decisions,
and the central ethical question left by Calley's trial — Calley was guilty of the murders,
but who was responsible ? — was never resolved. In part Calley has to be adjudged respon-
sible. In the field the local commander has considerable discretion.

The "will 1 still feel" question is intentionally two-edged. It is designed to
prevent me (and anybody else who cares to use it) from playing God, taking the full ethi-
cal responsibility for a judgment which can ultimately be validated only by some relevant
public. -But it is also designed to avoid the equal and opposite danger: that an action
about which I have doubts becomes all right if others — my colleagues in an organization,
my professional peers, my family, my friends and neighbors -- can be counted on not
to object. Judging your actions by what others would think is as risky as judging them
by what you alone think. William Attwood once reported on "an extreme and ironic case

33 - 30 ? 0—84 8

222

of neo-moral conformity in Colorado, where a man who did not chisel on his income tax
boasted that he did. To be well regarded by his friends, he pretended to be doing what
he assumed the group considered smart.” The case of young Charles Van Doren, who
cheated to make a TV quiz program successful, was only an especially dramatic instance
of a person who thought he could transplant organizational ethics wholesale, without
marrying them to a public* responsibility concept of his own.

In another famous instance of the corruptive power of the mass media,

Sam Snead found on the fourteenth hole of a televised golf tournament that he had one
extra club in his bag and was therefore automatically disqualified. Instead of saying
so forthwith, Snead finished out the match, but contrived to putt so badly that he lost.

The show must go on, he must have felt, and the National Broadcasting Company thought
so too: in full knowledge of Snead's unusual way of disqualifying himself, the network
later aired the match without warning the television audience that Snead had deliberately
"taken a dive" during the last few holes.

It is not clear that the television industry has yet learned the lesson. Just
the other day it was revealed that a tennis match between Jimmy Connors and Hie Nastase,
presented by CBS as a "winner take all" contest for $250,000, was in fact an arrangement
by which Connors got $500,000 and Nastase got $150,000, no matter who won.

223

VI.

People caught in ethical thickets such as these are often heard to blame their
troubles on the System — the corruption of the mass media or the oppressive weight
of the institution they serve. In the same way, the records of the Nuremburg trials are
full of claims that higher authority had taken the ethical responsibility for action —
and the Watergate defendants kept suggesting that if the White House and the nation's
chief law officer seemed to think their actions were all right, who were they to suppose
those actions were illegal?

But what makes Americans free is precisely our freedom to go dnd do some-
thing else if — in the only relevant judgment, which is inside each of us as ethical men
and women — we are asked to do something we regard as inmoral or illegal. If we
do not go and do something else, others have the right to presume that our moral
discomfort is offset by the more tangible comforts of the positions we hold, m
cannot claim to be both ashamed and oppressed — for that would relieve 1 us of the
private responsibility for our public actions which is, as Mark and Charles
Van Doren agreed, the very definition of integrity.

Is there a CIA exception to this definition of integrity? I do not think so.

I do not argue for universal openness; in fact ! have frequently argued against it. There
are many transactions and relationships which work better if they stay out of the news-
papers. What I do argue is that even in those transactions and relationships which must
be secret, it is essential to ask yourself whether, if and when the cover blows off, you .

224

will still feel all right about your part in them. Quite pragmatically, that's a good ques-
tion to ask because most secret actions will sooner or later leak out anyway. But even
if you knew your secret action would be airtight forever, the imaginative projection
of openness can help you decide whether you want to engage your personal responsibility
by taking part. Always remember that your decision to take part is more your decision
than anybody else's. Mark Van Doren was right. "There are no alibis."

A young professor named Woodrow Wilson recommended in 1887 that govern-
ment administrators should "combine openness and vigor . . . with ready docility to all
serious, well-sustained public criticism." It is still good advice. I have only added a
cadenza — that even in cases where the public cannot criticize because it doesn't know
what goes on, those of us who do know should provide in our hearts what is missing on
our desks — by asking ourselves how we would feel if serious, well-sustained public criti-
cism were suddenly to appear.

That makes each of our actions a choice. Choosing is often uncomfortable.
But freedom is the power to choose, and the continuous exercise of our personal power
to choose is the price of our personal freedom.

THE END

225

4560 Indian Rock Terrace , N. W.
Washington , D.C. 20007
202-338-5231

February 28, 1984

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service

Mr. Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
122 Cannon House Office Bldg.

Washington, D.C. 20515

Dear Ms, Chairwoman and Mr. Chairman:

Thank you for inviting n\y comments with respect to National
Security Decision Directive 84. I am pleased to contribute what
I can to your understanding of this problem even though, as you
know, the Administration seems to have withdrawn from its
original approach.

My comments can largely be seen in the attached copy of testimony
I gave to the Senate Committee on Governmental Affairs on September
13, 1983. This expresses the conclusions that I came to on
the basis of my experience operating under a prepublication
review system pursuant to my agreement with the Central Intelligence
Agency. My testimony does not, however, specifically answer
some of your questions, which I am very happy to do in the attached
memorandum.

I have no objection to these comments being made a part
of your record.

With respect and appreciation for the opportunity to
present these views,

Sincerely ,

226

MEMORANDUM :

William E. Colby Responses

1. I have published one book, a number of newspaper and maqazine articles
and have been quite free in my comments on television, in interviews
and radio. While I am responsible for protecting classified information
in these activities, prepublication review is only required for items
which I deliberately put to writing before publication, i.e., articles
or books. It does not apply to spontaneous answers, interviews,
participation in conferences, etc*, provided there is no prior published
text. On some occasions I have sought approval for matters in which I
was requested to produce a text.

2* I was employed in the Central Intelligence Agency from 1950-1976
with one period of leave without pay from 1968-1971. As you know, I
eventually became Director of Central Intelligence from 1973-1976. In
this situation I had access to much sensitive compartmented information,
although even in my senior role I did not require access to the technical
details of some of the overall projects, which might be in separate
compartments .

3. When 1 submitted material for prepublication review 1 submitted

the entire text. In some situations, I made a judgement that the material
that I was producing did not refer in any way to intelligence activities,
and therefore did not require submission under my contract* This
distinction is clearly drawn in the regulations of the Agency which
cover the prepublication review process.

4. I submitted a number of writings for prepublication review and found
the experience generally understandable, if a minor nuisance. The
Central Intelligence Agency requested me to delete certain matters

and I did so. I was permitted to demonstrate that the material had
been de-cl assified on occasion. The length of time of review was not
burdensome, as I understand the problems of the Agency in reviewing
the large amount of material that they receive. I am quite confident
that the Agency did not give me any favored treatment in its review and
release of my material. On one occasion, as you well know, an early
draft of some material was sent to my publisher with the understanding
that the final version would be changed if the Agency required it. The
publisher sent the early draft for translation for a French edition, and
then failed to send the corrections, although he had made them in the
English and other editions. The Agency proceeded against me for this
violation of my contract and we eventually settled the matter with my
payment of the approximate amount of my earnings from the French edition.
The interesting aspect of that experience was that took the offending
material from a published article by a former high Defense Department
officer, who was not under a prepublication review requirement. The
Agency took the position that I should not publish this material even
though he had violated the understandings he had made when he agreed to
keep that material secret. Perhaps for this reason, I find myself in
sympathy with the. idea of including the recipients of sensitive
compartmented information under a restriction similar to that applied to
those of us who produce that information.^,

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5* Expanding the use of the prepublication review system will, in
my opinion, reduce the disclosure of the most sensitive compartmented
information.

6. Based on my experience, J_believe that it would be appropriate
to require that persons under the prepublication review requirement be
required to submit only material referring to intelligence or intelligence
activities, for prepublication review, as is the case in my current situation
with respect to CIA. Stretching it to include it to "all" publications
does sweep too far for practical results, as it would apply to material

having nothing to do with the information being protected. At the

same time, I believe that if something appears which is in fact classified,
it would be appropriate for the Government to require its excision
even though it not be sensitive compartmented information. If the

material is in the Government's hands, it can hardly ignore the fact

that it is there and authorize its release. Limitation of the re-
quirement, however, to material referring to intelligence activities, or even more
restricti vely to intelligence activities related to sensitive compartmented
information, would do the protective job but not sweep in all sorts _
of extraneous material which would hardly serve the end being sought.'

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UNITED SPATES SENATE
COMMITTEE ON GOVERNMENTAL AFFAIRS
TESTIMONY OF WILLIAM E. COLBY
DIRECTOR OF CENTRAL INTELLIGENCE 1973-1976
SEPTEMBER 13/ 1983

Mr. Chairman, thank you for your invitation to testify
during your committee's review of the Administration's National
Security Decision Directive 84. I have long had an interest in
the problems of protecting our government and especially our
im.^lligence agencies against unauthorized leaks. I have also
had some experience on the other side of the relationship as I
have continued to write and speak publicly on the subject of
intelligence after my departure from the government in 1976.

The subject of unauthorized disclosure of classified
information has a long history in the United States. Congress
has on several occasions refused to adopt a broad statute which
would provide criminal sanctions for the mere disclosure of
classified information. In part, this has been a reflection of
Congress' inability to define the subject of classified
information. It has only resolved this, in certain cases, by
referring to information classified under executive order. In
certain specified categories of information Congress has provided
for punishment of unauthorized disclosure: restricted data with
respect to nuclear information, communications intelligence and,

I am pleased to say, the protection of intelligence sources, just

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recently. In the background there/ of course/ is broader
legislation referring to espionage or the conscious delivery of
secret information to a foreign power/ which is clearly
punishable.

Even in these cases, however, the prosecution of such •
disclosures has proved to be very difficult, as the interagency
committee whose studies led up to National Security Decision
Directive 84 pointed out. The Congress has been helpful in
reducing one of these problems through the Classified Information
Procedures Act of 1980, limiting the ability of an accused to
threaten disclosure of vast amounts of sensitive information in
the event he is prosecuted. There are other problems in such
prosecutions, however, including the requirement that the
government actually confirm that the information released is
accurate, which it may not wish to do in certain situations for
very good reasons.

As a result of these problems, a series of Administrations
have sought tools by which to limit the unauthorized disclosure
of classified information. To prevent the publication of the
Pentagon papers, an effort was made to obtain a preliminary
injunction, which failed although there is language in some of
the justices' opinions that such a remedy might be available in
the case of "clear and irreparable damage to the United States".

As one of these efforts to reduce the unauthorized
disclosure of classified information, the Central Intelligence
Agency some years ago developed the concept of the private

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contract which would not only bind the employee who signed it not
to reveal the information to which he was to become privy but in
which he also agreed to submit any future publications for prior
review. This arrangement was given Supreme Court approval in the
case of Mr. Prank Snepp, in which the court indicated that there
might not only be a contract basis for.such a requirement but
also that the government official in such a sensitive field might
be the subject of fiduciary trust as to the information involved.
It is this approach which underlies National Security Decision
Directive 84, extending beyond the limited intelligence agencies*
the agreement for prepublication review.

In the form in which the Directive expresses it, it has my
full support. You will note that there is a distinct difference
between the general commitment to respect the secrecy of the
material to which an employee will become privy in the case of
ordinary classified information and that covering sensitive
compar tmented information. Only the latter provides for
prepublication review of future works by the employee in
question. In my experience, Mr. Chairman, the sensitive
compartmented information is quite a limited category of overall
information and applies only to matters of truly high
sensitivity. The dilemma has been that the intelligence officer
dealing with this material has long been under a requirement for
prepublica tion , review of any materials he wishes to write on
intelligence. The recipient of the information elsewhere in the
government, who needs the information in order to do his job at a

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high policy or defense level/ has not been under a similar
restriction. \ In my own personal experience/ Mr. Chairman/ I used
the writings of a former high official of the Defense Department
who wrote a very details description of a particular
intelligence operation that I wished to cover in my book and
repeated only what he published about the operation. In my
prepublication review however/ the Agency took the position that
I should not make these statements and they were taken out of my
book. A series of mistakes led to them appearing in one
particular edition for which appropriate action was taken against
me. If we believe that the intelligence officer should be under
the prepublication restriction it seems only right that the
recipient of the same information elsewhere in the government
should be subject to the same controls.

At the same time/ Mr. Chairman/ I must confess that it is
undignified for the United States to rest upon contract law’ to
protect its sensitive classified information. It is also
somewhat illogical for us to be making this effort to protect
information against public disclosure while our protections
against its private disclosure to other than foreign intelligence
officers are so weak. Prepublication review also has many
weaknesses both in practice in terms of adhering to a consistent
standard over the years and in its reversal of well-established
constitutional doctrine that prior restraint should be the last
of the actions taken against the publication of opinion and
discussion in our free society. While a sharply limited

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prepublication review can certainly be justified in the absence
of any better way of protecting us against unauthorized
disclosure of classified information, X still believe that a
frank and direct approach to this problem would be far preferable
both in the light of our open democratic society and of the
difficulties of consistent prepublication review.

Thus again, I suggest the desirability of a clear criminal
sanction for the unauthorized disclosure of classified
information. In deference to the problems involved in this
subject, and the widespread existence of classified information,
it would seem that a proper statute could be drawn which would
not have too broad an impact but would still have the main
function of deterring some of the more outrageous leaks and
disclosures that go on in our government. Thus, it would seem
that instead of a broad statute punishing the release of any
classified information, a series of graduated steps could be made
from a very minor and possibly only administrative sanction for
the disclosure of confidential material to a misdemeanor for
secret material to a felony for top secret material. Again, this
should require only proof, that the matter was properly classified
at this level and not have as an issue in the case the question
of injury to the United States, which admittedly is sometimes
difficult to prove in a specific case but clearly exists in the
light of the widespread leakage from our Government. In such a
case of course, arrangements could be made for the voluntary
submission of material for prepublication review, the approval of

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which of course would constitute a bar to prosecution- And in
recognition that much of the so-call "leakage" that goes on in
Washington actually consists of background interviews by senior
officials with journalists and the senior official actually has
authority to declassify the material, a provision could be made
that the a ttribu ted release of classified information by an
authorized official would not be a basis for prosecution whereas
unattributed release could potentially place him within the
provisions of the statute. A requirement that material given to
our press be given in an attributed form in my opinion would
reduce the amount of "leakage" by many orders of magnitude.

Mr- Chairman, we have wrestled with this problem of
protecting classified information in our free society for many
decades. While I sympathize with the Administration in this
latest attempt to limit disclosure of the more sensitive material
through a requirement for prepublication review, I do believe
that we are never going to solve this problem unless we frankly
face up to the definitional problem of classified information and
establish as a national policy that its unauthorized disclosure
is a criminal act- I respectfully suggest that the above
technique would be one in which we could move in that direction.

234

The

Center

for

International

Affairs

Harvard

University

IllJLlW

ItV-Jff

Vtll WMF

1737 Cambridge Street, Cambridge MA 02138
Cable Address HUCFIA (617) 495-4420

February 13, 1984

Don Edwards

Patricia Schroeder

Subcommittee on Civil Service

Committee on Post Office and Civil Service

U.S. House of Representatives

122 Cannon House Office Building

Washington, D.C. 20515

Dear Reps, Edwards and Schroeder,

X respond to your letter of January 31 asking for ray experience
with publication and prepublication review subsequent to government
employment.

I am now employed as a professor of economics, and I write
extensively for newspapers, specialized publications, and profes-
sional books and journals. During the period 1977-1981 I was Under-
secretary of State for Economics Affairs, and as such I had access
both to classified information in general and to small amounts
of Sensitive Compartmental Information.

My publications all concern economic analysis or commentary
on present and past developments in various aspects of the world
economy. In doing so, I draw on open sources and use no classified
information, much less SCI, although of course my judgments are
often influenced by my government experience. I do not write in
fields involving SCI, I have not submitted any publication for
prepublication review, and therefore I have no experience with
pre-publication review.

Your letter suggests that all former government officials
with access to SCI must submit all their publications, including
speeches and lectures, for prepublication review. If that is a
correct interpretation of the Directive, I would object to it
strongly. As noted above, I publish extensively (and lecture
even more extensively) , but these publications are not on topics
that involve SCI. It would be preposterous and a wholly un-
necessary burden on all concerned to require prepublication re-
view of articles on the current foreign debt crisis or the world
recession or the European agricultural policy simply because in

235

a particular period of the past 1 had access to SCI, which had no
bearing on any of these topics. Furthermore, in practice it would
be impossible to submit for prepublication review lectures that
are given from notes scribbled on the back of an envelope, which
I (and many others) occasionally do.

SCI can be very sensitive indeed, and leaks of it should be
treated very seriously. But prepublication review should be limited
to manuscripts which run some practical risk of disclosure, and the
judgment whether this condition is met should be left to authors.

They can and should be held accountable if they err and do publish
sensitive information. Classifications should be kept up to date;
sound reasons for classifying at one moment of time often disappear
with the passage of time, and that should be allowed for in assessing
(before or after) subsequent publications.

Sincerely yours,

Richard N. Cooper
Haurits C. Boas Professor of
International Economics
Harvard University

236

7735 ~ 4cth Avenue NE
Seattle, Washington 98II5
February 15 , 1984

Patricia Schroeder, Chairwoman
Subcommittee on Civil Service
Committee on Post Office and Civil Service
U.S. House of Representatives
122 Cannon House Office Building
Washington, D. C. 20.515

Dear Chairwoman Schroeder j

This is in response to your letter of January 31> 1984 in which you
asked ray views on the pre-publication review requirements of National
Security Decision Directive 84. I have addressed only those questions
raised in your letter and have not touched on the legal or constitutional
aspects of this directive. My replies call be made part of the public
record if you wish.

1. The only article I have written, published or otherwise, appeared
in the Summer 1983 issue (Number 51) of Foreign Policy and was en-
titled "Taipei's Identity Crisis". It was, like a letter to the New
York Times and a short piece for one of the Seattle papers, derived
from my government experience .

2. I was in the Foreign Service from 1949 to 1979 > moving from the
bottom to the top. Also pertinent to this study was that after I of-
ficially retired in 1979 I became the first Director of the American
Institute in Taiwan (AIT) which was the entity established by Congress
to conduct our unofficial relations with Taiwan. I retired from that
position in 1981 Therefore, from June, 1949 to September, 1981 I had
access to classified information; from 1961 on I had access to and
used some of the most sensitive kinds of information in my various
jobs.

3* The article I wrote did not deal with a sensitive subject. The
few statistics and quotes which were used I knew to be in the public
domain. The views expressed were my own; and although many of them
had been put forth earlier in classified form as policy suggestions,
there was no need to make that connection to add credibility to the
article. Thus, I did not submit any part of the article for review
by anyone except the editors of Foreign Policy .

4. Not applicable.

5- and 6. Frankly, I think the Directive itself will prove to be
impractical, and extension of it would only weaken it further. I
don't believe you can direct or legislate discipline and integrity;
attempts to do so will only shift the responsibility from the indiv-

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idual to a "system" -- in this case one which is hound to become cumber-
some and slow.

Most senior State Department officials dealing with substantive matters
need SCI for their work, and they see a lot of it. However, in the
briefings which accompany their clearances they are usually carefully
informed as to the reasons why the information must be guarded and how
it is to be protected from disclosure to unauthorised persons. They
rapidly become familiar with the internal gradations and nuances of the
various SCI categories and the permissable circumlocutions which might
possibly be employed in discussing those matters. It all becomes part
of their working lives, and they carry with them a good sense of what
is really classified (i.e. should always be safeguarded) when they
leave government service. Therefore, the danger of inadvertent leaks
doesn't seem to me to be very great — at least of truly sensitve in-
formation.

Deliberate use in publications and speeches of classifed material is
another matter. The motive, obviously, is not to pass secrets to a
foreign power but to make a point -- usually related to a policy issue.
People who wish to do this will argue that the information is wrongly
classified or that, in any case, there is a higher morality in re-
vealing it. They would either disregard the pre-publication requirement
or circumvent it by arranging for someone else to publicize the pro-
scribed material.

Thus, pre-publication review would be largely unnecessary to prevent
mistakes and would be ineffective in deterring purposeful leaks. The
regulation is ill-advised, and I doubt whether it will be observed.

Probably the committee has looked into this, but it seems to me that
the Freedom of Information process of clearing documents for public-
ation or non-governmental use might be adapted to serve the avowed
purposes of a pre-publication review. The steps in such a process
could be the following:

1. The information to be covered would be strictly limited
to that which is extremely sensitive , or the means of
acquiring it' must be protected at all costs.

2. Those individuals cleared for this information would
undertake never to reveal it to unauthorized persons.

(This is the case with certain kinds of intelligence
already.) However, because some inf ormation or intelli-
gence techniques lose their sensitivity in time, a spec-
ial method of checking on whether that has happened would
be made available to those who have left the government
service. The formula for inquiring would be given to
the official when he quits.

3* If an ex-government official felt he needed to use some-
thing on a protected subject, he would employ the formula

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’with the appropriate FOX unit, asking in effect, "What
may I say about such and such.....?" If the answer were
"Nothing", that would end the discussion. On the other
hand, the FOI unit could provide a sanitized version which
the ex- official could refer to in his subsequent writing.
This is only slightly different from the standard FOI
procedure available to everyone but would assure priority
attention to sensitive matters, provide advance clearance
and advice rather than censorship after writing, and im-
plement a process which was clear-cut and, therefore,
enforceable .

I hope the foregoing is of some use to your committee.

Sincerely,

/v)L

'Mpy

"Charles T.

Cross

239

LLOYD N. CUTLER
DIRECT LIME (*OJ)
071*6100

WlLMER, CUTLER & PICKERING

1666 K STREET, N. W.
WASHINGTON, D. C. 20006

CABLE ADDRESS WICRING WASH., O C.
international rciEA AAO-aja

TELCX 69-2402
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LONDON, CC4R 2RA, ENGLAND
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CABLE ADDRESS! WICRINO LONDON

January 27, 1984

Honorable Don Edwards, Chairman
Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
House of Representatives
Washington, D. C. 20515

Honorable Patricia ‘Schroeder, Chairwoman
Subcommittee on Civil Service
Committee on Post Office and
Civil Service
House of Representatives
Washington, D. C. 2^515

iycrvv T %f c i i \

Dear Mr; - Edwards and- Ms H-SdirQe.der :

This will acknowledge and thank you for your
letter of January 18, 1984 concerning National Security
Decision Directive 84.

I believe the best way to answer your questions
is to enclose a copy of my testimony before the Senate
Committee on Governmental Affairs on this subject.

Sincerely,

Lloyd N.

Enclosure

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row.

#09 STATEMENT OF LLOYD CUTLER, FORMER COUNSELOR TO PRESIDENT
CARTER, WILMER, CUTLER AND PICKERING

#09 STATEMENT OF WILLIAM E. COLBY, FORMER DIRECTOR, CENTRAL
INTELLIGENCE AGENCY

#09 STATEMENT OF ADMIRAL NOEL GAYLER, USN, RETIRED, FORMER
DIRECTOR, NATIONAL SECURITY AGENCY

Mr- Cutler- Thank you very much, Mr. Chairman.

My name Is Lloyd Cutler. I have had experience that goes
back some time in the intelligence production agencies, and
during the last year or so of the Carter Administration I was
an intelligence consumer in my capacity as Counsel to the
President. In that capacity, I struggled with some of the
problems to which the new Directive is now aimed.

I have not presented any prepared testimony. I do have
a* outline which I think has been made available to the staff
and should be available to you.

I am not an extremist one way or the other on this issue.
As the chairman just observed, it is a very complex and
difficult one. I do think that at least for intelligence
agency personnel, producers of intelligence as distinguished
from consumers, that some form of prepublication review
probably is desirable to ensure that national security and
especially intelligence security information is not disclosed.
But I think the Snepp directive goes much too far and, as any

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regulation in this area of speech should, does not strike a
reasonable and satisfactory balance between the government's
need for review and a present or former official's, especially
a policy official's, right to speak out on matters of public
interest .

The critical step beyond, the one more step that this
Administration has taken that has never previously been taken,
to my knowledge, is to impose a prior review requirement on
policymakers in the government: Secretaries and Assistant
Secretaries of State and Defense, former White House and
National Security people. I don't think a case has been made
that prior review of the statements of such officials is
necessary to prevent serious breaches of intelligence
security. I don't think a factual case has been made.

Beyond that, I think there is a real question whether the
Snepp case, aimed as it was at a prior disclosure agreement
with an intelligence producer, someone who went to w w rk in an
intelligence agency, can automatically be extended to all of
the intelligence consumers, alt of the policymakers, present
and past, in the government. They don't present a Snepp type
of case or a Marchetti type of case.

The public interest in access to the views of policymaking
officials, present and past, in the foreign policy, national
defense, and national security field is much higher than the
public interest in access to the views of former intelligence

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personnel. That is where I part company with the new
Directive.

I won't stop to go over the reasons why it is important to,
protect intelligence information. I think the Admini st ration
makes a very sensible and a very good case for that. I won't
even debate the proposition that for intelligence producing
personnel, particularly those who wish to write books, let's
say, about intelligence-gathering activities, whether real or
fictional, it seems to me the case for prior review for the
work, for the new statements or publications those people are
going to produce is a reasonable case, and Snepp certainly
confirms that. Even the lower court's opinion in the Snepp
case accepted that.

Prepublication review, of course, is never cost-free.

Alt prior restraints involve some suppression of speech.

The case is probably a justifiable one, in the case of
intelligence producing personnel, particularly career
personnel, who make that bargain when they go into the
intelligence services.

It obviously has potential for abuse. I don't think
anyone can make the case that there has been abuse to date;
that is, censorship going beyond the censorship of intelligence
information. But there is always the prospect of the chilling
effect, the prevention of even speech that would not have been
restrained if it had been reviewed, that exists with any form

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of standing prior restraint. It is just too much trouble
to go through the clearance and the clearance process can
operate to prohibit speech.

But I do think the case falls down in trying to establish
that policymakers, and no one suggests deliberately, but even
inadvertently, po-H-cyrta-k-e- r - s . r -a pq-l-^ do commit serious breaches
of intelligence security; and the laws that exist which would
punish such breaches, and the opprobium, the disgrace a
policymaker brings on himself when he commits such a breach
ought to be sufficient without imposing this prior review
req ui rement .

Furthermore --

Senator Mathias. Mr. Cutler, I don’t want to be
guilty of suppression of speech, and I apologize to you because
before you entered the room we had agreed on a five-minute
oral presentation --

Mr. Cutler. I am sorry. I will just finish up then.

Senator Mathias. It is my fault for not having
advised you of the five-minute rule.

Mr. Cutler. 'Forgive me.

The prior review requirement, moreover, is wholly
impractical when it comes to interviews with the press, when it
comes to op. ed. pieces, even when it comes to short articles
with very short publication times. The best proof of that is
that the government, to my knowledge, even though it has had

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these agreements in effect for a while, enver has invoked
them in the case of interviews or even of op. ed. pieces.
Nothing happens when somebody just gives that.

Beyond that, there are issues, of course, on which
policymakers must speak. Let's take, for example, the issue of
verification of arms control agreements through so-called
national technical means. Over and over again, in the SALT 2
hearings, as one example, the issue arose -- and it was a
public, debated issue -- are our means of verification
adequate .

Mr. Willard has said you can speak freely as Long as you
don’t disclose any of this type of information. But simply
for a policymaker to express the opinion that our means of
verification are adequate, reading these restraints literally,
would require prior review, because he is dealing with
sensitive compa rtment ed information^ and its existence. The
same would be true as uo what we spend on it, v,hat new types
of satellites we have, and other things, much of which is
highly classified.

I submit no real harm has been done by permitting
policymakers to give statements on issues of this type,
subject to the criminal laws and the orders not to disclose
anything of intelligence value without imposing on them the
prior restraint requirement.

Senator Mathias. Thank you, Mr. Cutler-

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Admiral Gayler?

Admiral Gayler. My name is Noel Gayler. I am a Retired
Admiral of the Navy, at one time Director of the National
Security Agency, at one time Commander-in-Chief of U.S. Forces
in the Pacific.

I want to talk this morning not specifically to the
Directive but to the characteristics of the information
needing protection and some practical observations on what is
effective in that protection.

I think it is taken as a given, for example, that alt
United States codes and ciphers, and the policy is that they
should be protected, is beyond dispute. I do observe, however,
that large volumes purpprting to deal with inside information
on this have been published in this country, and only their
general inaccuracy has saved them from doing considerable
damage.

More important is signals intelligence, what is derived
from reading communications. For example, those having to do
with the shoot down of the Korean airliner; information from
other than communications; radar, telemetry; the measures and
the counter-measures and support measures in this wizard war
of electronics, all of that has to be protected at a very high
Level of classification. Clearly agents and agent operations
dealing with collection of information. In that I would not
personally include, however, operations in massive. They are

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bound to be disclosed, or ones having to do with what we call
dirty tricks, rather than the collection of intelligence.

And certainly counterintelligence methods and results, the way
in which spies are detected, deserves high classifi cation-

Characteristics of this kind of information are, first,
that you lose it if it becomes knowledge to the adversary;
second, that lives are often at stake; third, that the^ nati ona l
security interest is involved, not only in peacetime but
particularly if there were hostilities, and some of the methods
that we have should be reserved and protected against *he
contingency of military action. The fourth and the most
difficult is that some of these things can be deduced rather
readily from disclosure of product. That is to say if you know
what a Soviet pilot said on a particular occasion, it is not
much of a deduction to figure that you are monitoring his
radio transmissions.

The further characteristic of this sort of information
and these sources is that they do need careful oversight for
reasons of public policy, but that that oversight should not be
public. The methods used have to be consistent with our
American ethos and constitutionality. This should be an
appeals process, but, unfortunately, outsiders to the
intelligence community are not in a position to judge the
damage that will be done from a particular disclosure. Then,
of course, there is the case where disclosure is in the public

MILTON REPORTING. INCORPORATED

247

interest, and it is certainly the President's right, and duty
to determine those circumstances.

The policy problems will be covered by other witnesses.

I see that I am short on time, so I will come to my bottom
line, which is that I believe protection rather than being
broad should be selective and narrow, that the distribution
of this material should be much narrower than it is at present,
that there is a major distinction between SCI and other
classified material, that Long-term protection is justified
only in very special cases having to do with intelligence
methods, and that competent monitoring and wat chdogg i ng i s
necessary for these things which are protected from public
disclosure. So I would rather that we protect very
carefully special categories supervised at an independent
level through thoughtful and carefully drawn directives and use
the rifle rather than the shotgun approach.

Thank you.

Senator Mathias. Thank you.

Mr. Colby?

Mr. Colby. Mr. Chairman, thank you for inviting us today.
I will not repeat my prepared testimony but merely make two
overall points, Mr. Chairman.

(The statement follows:)

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Hr. Colby. I have had experience on both sides of this
question, enforcing these agreements and having them enforced
against me, so I think I can see both sides of the problem and
where it is and what it is like.

The fact is that this Directive I support. I support it
because it is limited to a very critical kind of intelligence,
the sensitive compa rtment ed intelligence. This is. not a
broad provision. It is a very narrow category of very highly
sensitive kinds of information. They are carefully controlled
in the Administration. They are carefullydocumented in most
cases. A careful inventory is kept of this material and, at a
certain period, in some cases, it is moved out of the sensitive
category into another category, when it becomes less sensitive.
So that we are only talking about protection of a particular
kind of .information.

Now, in that process, the intelligence officers are
under a p repub L i cat i on review requirement under their
Directive, under their contract. However, in my own case, for
instance, I know of one particular case where I was barred
from saying something about a particular activity, even though
a fellow high officer in the United States Government had just
written an article about it describing it in considerable
detail.

Now I used his article when I wrote my material and
submitted it. I have a question as to whether the government

was actually right in asking me not to. But I do understand
that they have a basis for it. I understand their rationale.
And I agreed a long time ago to let them make the decision.

The question is why should the producer be under that
restriction and the recipient of it under no controls of that
nature? 1 think that is not quite appropriate, and I support
the effort to include the recipients of this highly sensitive
information in the prepublication review.

Once the material is in the government's hands, of
course, it is going to be looking for all classified material*
There is nothing you can do about that. But that 'doesn’t mean
that all classified material is being subjected to the
prepublication review requirement. It is only recipients of
the sensitive information that are covered by that requirement.

The v second major point 1 would make, Mr. Chairman, is
that this prepublication contract and the various other things
are desperation efforts by the government and a whole series
of administrations over the years to compensate for the fact
that Congress has never adequately moved to protect our
classified information. Congress has walked up to this
oarticular trench on several occasions in the early 1900s, in
the 1930s, the 1940s, various times, and each time thrown up
its hands and said I can’t really define classified information
adequately. I can't figure out what kind of restraints and
what kind of punishments we should have for the release of it.

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and, consequently, left the field wide open.

As a result, the administrations, on a series of
occasions, have developed these techniques, such as the
contracts, the prior prepublication review and so forth, in a
desperate effort to control the Leakage that occurs.

Now I think the real way that our government should be
protecting its classified information is by some more
direct method than going through the Legal gimmickry of a
contract with its employees. I think there ought to be a clear
criminal sanction for the release of classified information.

Now, that can be graduated by the seriousness of the
information. It can be applied to various recipients of
various kinds who have a particular position of responsibility.
And I would think that a law could be developed which would
give us a reasonable criminal sanction for the release of
classified information and then obviate the need for this kind
of legal gimmickry in order to protect our secrets.

Thank you, Mr. Chairman.

Senator Mathias. Thank you, Mr. Colby.

Mr. Cutler spoke of the possible chilling effect. Of
course, that recalls the purposes for which the First
Amendment uas adopted, to promote the freest possible flow of
information, of opinion, of argument, discussion, all of which
was conceived by the founding fathers to be a necessary
ingredient to a free government.

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Let me ask, and perhaps it would be useful to ask each of
you, because you were all in the same boat on this, what would
you do if you were the subject to one of these agreements and
you had some doubt — Mr. Colby has in part answered this
question — but you had some doubt as to whether or not you
were required to submit your manuscript? If you guess wrong,
you could be facing an injunction, so you are going to be
cautious about it. What would be your personal view, if you
sat down in your study, took up your pen, and began to meditate
on some of your personal experiences? How would you feel?

Would you rather submit it for publication review or would you
rather tailor the article?

Mr. Cutler. If I were writing a book, Mr. Chairman, I
have seen relatively Little difficulty in submitting a book or
even Lett's say an article for The Atlantic Monthly or
Harper's to prepublication review. When it comes to giving
an oral interview or responding to a request to write
something for the op. ed. page of The Washington Post or
volunteering to write something like that for publication three
or four days Later on an issue of immediate importance, like
the shoot down of Korean Flight 0Q7, which almost certainly

sxr

involves,;. Tr"'seems to me it does have a chilling effect.

Thinking back, if I were back in the White House again,
if there had been such an order, or such a rule in effect,
in one way it would have helped me. I could have told a lot of

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reporters I can’t give you an interview, period. But there
is a public interest in visible policymaking, public officials
being accountable to the press. And I don't see how you can
accommodate that with this kind of a requirement.

We can't have somebody sitting deep in the NSC basement
in the White House fielding questions from the 500
presidential appointees who the press talks to every day about
major international incidents, it just isn't going to work.

A much better method for the government, if it is this
important to protect itself, and I agree it is, is to do what
Admiral Gayler said, and that is very sharply restrict the
number of people with access to SCI and much more clearly
identify in the publications that circulate within the
intelligence community to consumers what is and what is not
SCI.

There is a sort of lust to publish and be first with the
scoop among the various intelligence agencies who print daily
or weekly items of one kind or another that leads to far too
indiscriminate distribution of SCI material. I imagine all
three of us would agree on that.

Senator Mathias. Admiral, do you want to comment on that
q uest i on?

Admiral Gayler. The answer has to be personal. I
wouldn't have any personal difficulty, I don't think, in
distinguishing between SCI and other kinds of information.

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X would certainly not write in the first instance for
publication on SCJ.

The other point I think has to do with the permanent
nature of the disclosure, where intelligence methods or
real secrets of state, if you will, are involved- One can
understand a permanent restriction- The rest of it is so
omniscient that it seems to me that fairly prompt
declassification is usually okay.

Hr. Colby. Two items. Hr. Chairman. I have submitted
material- I have submitted a book and I intend to submit
another one. I have submitted articles. I have submitted
short pieces, long pieces, various kinds of pieces. I have
never had any real problem. I have been asked not to say
certain things and I have complied, and I have tried to live
up to that agreement- It has not been a limitation on my
ability to operate, to talk, to cover subjects, and so forth.

I have gotten rathe" rapid responses from the agency to
my submission. I have had sensible exceptions to the things
that I have wanted to say and not arbitrary ones. There are
some that I have disagreed with slightly, but X understand
why they did it and I consequently haven’t objected to that.

With respect to the problem of the oral leak.

Hr. Chairman, there is a very simple way to solve that one.
You asked how are you going to solve that in our government.
Xt is very simple. If it is attributed and the officer has

33-307 0-84 9

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authority to declassify it/ fine/ It is the unattributed one
where you get the real leaks. All you have to do is make that
rule and you will have an end to the problem.

Senator Mathias. Thank you very much/ Mr. Colby.

Senator Eagteton?

Senator Eaglet'on. Mr. Colby, I am a little hard of
hearing. I think I heard you say you do support this
Directive.

Mr. Colby. Yes. I wouldn’t support every little word in
it, but in general I understand the reason for it.

Senator Eagteton. I thought I heard you say you found the
categories in the Directive were clear.

Mr. Colby. I think reasonably, yes. Operating under
this kind of Directive myself, I haven’t had any troubLe.

Senator Eagteton. 8ut this Directive goes beyond anything
that you have operated under, in my opinion. Not only does it
deal with SCI — and I guess we are unanimous on the committee
that we would agree that SCI ought to be covered — but it
deals with the following kinds of materials, and I am going to
quote the exact words from the Directive. Paragraph 1, it
deals with materials that are "classifiable." Paragraph 5,
sub C, it deals with materials that are "information
concerning intelligence activities." Paragraph 7, it deals
with materials "subject to classification."

Now, SCI is clear to me, and abundantly clear to you.

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You dealt with it all your life. But words such as
"classi f i able,*' or "subject to classification," or
"information concerning intelligence activities," that is less
clear to me, much more broad, much more sweeping. Are you
comfortable with that language?

Mr. Colby. We are talking, in the first place. Senator,
of a group of people who are given access to highly sens’!',
material. When they take on that access, they take additional
responsibility to protect not only that material but other
intelligence activities.

The reason for the "subject to classification" or
"classifiable" as a legal term is if you can find someplace
that the thing had not actually been stamped, although it has
the name of our principal agent in country "Y," then you would
say well, it isn’t classified, and stilt it is very important
that it should be classified. That is why that phrase is in
there.

But the context of the Directive I think is fairly clear.
It applies basically to people who received SCI clearance
and it says that they will keep their mouths shut about
intelligence activities. That is essentially what it says
and it is not our duty to interpret that.

Senator Eagleton- It troubles me, because I think the
sweep is much broader than SCI and maybe isn’t as readily
discernible as you make it out to be. Do I interpret your

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testimony where you were critical of Congress — and we are
subject to frequent criticism —

Mr. Colby. You haven't solved the problem.

Senator Eagleton. That is perfectly permissible.

Do you favor some sort of official secrets act similar
to what they have in Great Britain?

Mr. Cotby. That would be totally unconstitutional.
Senator. No, I do not. But I think a reasonable kind of an
act Where you have to prove that the material was properly
classified as pert of the indictment, that we could have a
statute that would protect classified information. You could
have gradations of the seriousness of it, affecting whether it
is a misdemeanor or felony or whatever. I think you can work
it out.

Senator Eagleton. Mr. Cutler, let me ask you a similar
question.

Mr. Colby. And it would eliminate the need for prior
restraint, incidentally.

Senator Eagleton. I understand.

Mr. Colby. That is the benefit of it, that it puts it
right smack on the criminal level. If you want to go ahead and
publish it at risk, go ahead, take your chances. Today you can
go ahead and nothing happens at all.

Senator Eagleton. Mr. Cutler, as a pretty distinguished
attorney, are you at atl troubled by some of the phraseology

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in this Directive which I read to Mr. Colby: paragraph 1
referring to information that is “classifiable"; paragraph 7,
material that is "subject to classification," and paragraph
5(c), "information concerning intelligence activities"?

Is that language of art that is sufficiently specific as far as
you are concerned?

Mr. Cutter. No, I don't think it is, Senato r . Eag 1 e ton .

I think also it is discriminatory in the sense that, as you
will notice, in the agreements signed by persons who receive
classified information, not rising to the level of SCI, there
is no prior review requirement. They are not subjected to
prior review. They are required not to disclose it, but they
have no prior review as to classified information falling
short of SCI. If you have SCI information, then you have a
prior restraint requirement both as to SCI information and
lower levels of classified information.

I can understand why they do that, berause of the
difficulty the user has in discriminating between what he
heard from an SCI source and what he heard from a less
important but classified source. The answer to that I think
is in restricting the circulation of the SCI information and
not commingling it with other types of classified information,
as is now done.

Senator Eagleton. Thank you very much.

Senator Mathias. Senator Bingaman?

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Senator Bingaman- Let me just ask, maybe Hr. Cutler, or
if either of the other witnesses want to comment, how large
a group are we talking about here that are subject to this
prepublication requirement? I asked General Stilwell, and I
think he said that he thought maybe 100,000 people in the
Defense Department would be subject to the prepubLi cation
requirement, as I understood his testimony. Is that your
understanding?

Hr. Cutler. This is on SCI?

Senator Bingaman. I Relieve that is what he was referring
to. He didn't distinguish exactly.

Mr. Cutler. I don't know, but I would imagine if it is
that high, 95 percent of them must be producers of information
rather than users. But this new Directive does subject
certainly hundreds, and possibly thousands, of non-produce r s ,
but policymakers, in Defense, State, other departments, and
the White House to a new prior review, prior restraint
requirement, that was never put on them before.

Senator Bingaman*. With regard to this, I think you also
said, Mr. Cutler, in your testimony that there was at the
present time no real enforcement of the requirement for
prepublication review' and that people could write letters to
the editor or whatever without having them reviewed and there
was really no sanction imposed.

Mr. Cutler. They do, and no one does anything about it.

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The clearest case, of course, is while the Directive reads
in terms of press queries and oral statements to the press, I
have never heard of anyone in or out of an administration
subject to this requirement who has been even chastised for
giving an interview without prior clearance, unless perhaps in
the rare case where he actually does disclose some SCI
information. But nobody follows this requirement, and nobody
will. It is just totally impractical.

Senator Bingaman. Assume that is the case, that nobody
will follow it and nobody is following it. Do we have a
situation where the only enforcement that might take place
would have to be a very selective type of enforcement for
some type of political or other reason that the matter would
rise to such a profile or stature that the Justice Department
would get involved?

Hr. Cutler. For the oral interview type of case,
disclosure, or the short lead time op. ed. piece, it seems to
me there are going to be very few cases in which this rule will
be followed by persons subject to the agreement.

Senator Bingaman. Let me ask you one other question in
an area that we really didn't get into and that you didn't get
into in your prepared comments, but you talked about the
chilling effect of the prepublication requirement. Would you
have an opinion as to the chilling effect of
the broadened requirement of poLygraph examinations of

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government officials and employees that is contemplated
in this Di rect i ve?

Mr. Cutler. I have a great deal of concern about
polygraph requirements. Senator Bingaman. I appreciate that

. -‘A _ C

they have a certain - m- t- e r R ega t ta effect on employees and the
knowledge that there may be such tests will tend to deter
people from violating their commitments. But I have so little
confidence in the accuracy of polygraphs — we don’t accept
them in any court, you know. They are not valid under civil
service regulations as a basis for discharging any employee —
.that I hesitate to see polygraph usage rules extended.

I am very glad that I managed to come in and get out of
the government without ever having to be subjected to a
polygraph test myself. I don’t know what I would have done
or how I'would have come out.

I did have a, few cases in which I had to pass on the
use of polygraphs as applied to other people, and the whole
subject troubles me very much. I regret any extension of
polygraph usage.

Mr. Colby. Senator Bingaman, may I comment on that?

Senator Bingaman. Certainly.

Mr. Colby. I have taken a polygraph twice. It is a
miserable experience, no doubt about it. But we in CIA some
years ago reported to one of the committees of I believe the
House that we would have hired 150 people but for the fact of

*'* <*

what came out after they were put through the polygraph.

In other words, we had done the other investigations on them
and apparently nothing much. It is not that they flunked
the polygraph, don't get me wrong. It is what came out as a
result of the discussions, using the polygraph. And these
people would have been hired despite very negative things
in their background that we didn't knew anything about.

Now this polygraph use is not that kind of a clearance.
It is an investigative aid, as was clearly pointed out. It
has to be supplemented by other real evidence. So I think
there is a case for using it, as one can use various other
kinds of investigative aids.

Senator Bingaman. I see my time is up. Thank you,

Mr* Chairman.

Senator Mathias. Senator Eagleton had one question.

Senator Eagleton. Yes. I have one question for
Admiral Gayler. Admiral, would you comment on the dilemma
raised by Mr. Cutler in his opening statement; to wit, assume
this: Assume the President at some later date comes in with
an INF treaty or a START treaty. Assume that you Jthink the
treaty is very adverse to our national interests, because of
inadequate verification. Would this Directive constrain you
from speaking out vigorously and with specificity as to why
you were alarmed by what you deemed to be inadequate
verification techniques called for in the treaty?

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Admiral Gayler. I don't think it would be proper to have
a public discussion of verification techniques which fall into
the category of SCI. In an instance like that, I think that
the degree of verification possible should be ascertained, if
necessary, independently by appropriate committees of the
Congress in classified sessions where they could make an
independent judgment as to their adequacy. I do not think that
it falls within this category of public advocacy, however.

Senator Eagleton. Would you feel free to write an article
expressing your reluctance to support the treaty because of
inadequate verification?

Admiral Gayler. Senator, this is a tough one for me.

I would n.ever write such an article because I think the
requirements for verification which most people believe are
ab sur d ly 11 h i gh and detailed, that's another subject, but the
amount of cheating required to make any difference in a
nuclear exchange is so eno r mous that the question is almost
moo t .

Senator Eagleton. Thank you.

Mr. Cutter. Could I respond just briefly to that, or
comment. Senator Eagletcn?

I agree with Admiral Gayler, that detailed discussion of
the verification techniques that come within SCI probably
should be avoided. But let me put to you a hypothetical which
may not turn out to be very hypothetical. That is that the

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Administration declines to go forward with a particular type
of arms control agreement on the ground that it would not be
sufficiently verifiable, and there are sincere people, let us
say from former administrations, with experience in the field
and up-to-date knowledge of what our techniques are who believe
that is wrong, that verification is at least adequate, and that
you should go forward with the treaty, AnrJ the central issue
is the adequacy of the verification techniques.

At the very least, they ought to be able to say that in
their judgment these techniques are adequate and give at least
some detail. It would have to be detail that did not
compromise us in any way, I recognize that, but enough to
enter into the debate. This requirement, if it applied to
those individuals, if they had to sign a piece of paper Like
this, I think would be very inhibiting.

Senator Eagleton. Would you care to comment on that,

Mr. Colby?

Mr. Colby. Senator Eagleton, I have spoken out on the
verification subject. I have obviously left out the kinds of
data Admiral Gayler has mentioned. I have received clearance
for my statements. Alt you have to do is submit it and they
will take out something which is really something they do not
want said for a good reason. But as to your policy position,
you can be either for it or against it and they will send it
right back to you.

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Senator Mathias* That raises just one quick question
of perception, the public perception. Now after this hearing,
more Americans are going to be aware of this preclearance
concept. Each of you have been extraordinarly articulate and
Vocal on a number of subjects. You have contributed to the
public education, the public knowledge of a number of issues.
In each case it was Lloyd Cutler or Noel Gayler or Bill Colby
speaking, and the public accepted that.

What will be the perception after there is widespread
knowledge of the fact that there had to be some pre c l e aranie?
Is that going to change the way the public views what you say
and what you write?

Admiral Gayler. In effect, you are asking if it raises
a question of candor, would we be able to be candid?

Senator Mathias. Yes. It is the other end of the
chilling question.

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generally you can talk to the policy matters without getting
into intelligence details of the kind that I think should be
very carefully protected. I don’t think there is any
difficulty in saying that this is your belief, that within
the necessary limits you can verify this, that or the other,
without s .vying publicly how you think it might be verified.

Mr. Colby. I have debated this issue with good friends
like General Stilwell, publicly, during the SALT 2 discussions.

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He was against it and I was for it.

Mr. Cutler. I would come back to the distinction I drew
earlier between the intelligence producers and the policy-
makers, the intelligence consumers in the government. 8ut if
every time Cy Vance or Warren Christopher or former President
Carter or Mr. Br^nski or Henry Kissinger got into a debate on
any of these various subjects, whatever he said, even his
oral statements to reporters, that he had to go through
somebody sitting in the bowels of the White House, it seems to
me that does detract from public credibility about the
integrity of the debate.

Senator Mathias. Gent le men, we are under some pressure
of time. I am wondering if there are further questions from
the committee if you would be willing to answer them in writing
for the record.

Mr. Cutler. Of course.

Mr. Colby. Yes.

Admiral Gayler. Yes,

Senator Mathias. Thank you very much for being here.

Our next panel is Dr. David Lykken, Professor of
Psychiatry and Psychology, Department of Psychiatry, University
of Minnesota Medical School; and Mr. Norman Ansley, Chief,
Polygraph Division, Office of Security, National Security

266

SEPTEMBER 13, 1983

OUTLINE OF TESTIMONY
OF LLOYD N. CUTLER

BEFORE COMMITTEE ON GOVERNMENTAL AFFAIRS
ON NSDD-8A AGREEMENTS

Summary : Some form of prepublication review, at least for

INTELLIGENCE AGENCY PERSONNEL , PROBABLY IS DESIRABLE TO ENSURE
THAT NATIONAL SECURITY AND INTELLIGENCE INFORMATION IS NOT DIS-
CLOSED, BUT THE SNEPP DIRECTIVE DOES NOT STRIKE A REASONABLE OR
SATISFACTORY BALANCE BETWEEN THE GOVERNMENT'S NEED FOR REVIEW
AND THE PRESENT OR FORMER EMPLOYEE'S RIGHT TO SPEAK OUT ON MAT-
TERS OF PUBLIC INTEREST-

I- Disclosure of security and intelligence information is a

PROBLEM THAT DESERVES TO BE ADDRESSED

A- Disclosure is, by definition, harmful to U-S-
interests

B- Disclosure frequently is inadvertent; may
occur despite the efforts of authors not to

INCLUDE OR REVEAL SUCH INFORMATION IN THEIR

WORKS

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Prepublication review may be necessary in some

CIRCUMSTANCES

A. Present or former employees whose duties

INVOLVE THE GENERATION OR REVIEW OF SCI ON A
DAILY BASIS MAY HAVE DIFFICULTY WRITING ABOUT
THEIR AGENCY AND ITS ACTIVITIES WITHOUT
DISCLOSING SCI

B* This may be particularly likely where the
author's responsibilities were narrowly
focussed; may lack the background to SEE

THE TRUE SIGNIFICANCE OF INFORMATION \

HE GENERATED OR REVIEWED

C- IN SOME SUCH CIRCUMSTANCES, PREPUBLICATION
REVIEW MAY BE THE ONLY WAY TO ENSURE THAT
SCI IS NOT DISCLOSED

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III. But prepublication review is not cost-free

A- At, A MINIMUM, IT DELAYS PUBLICATION OF

UNCLASSIFIED MATERIAL THAT IS OF INTEREST
TO THE PUBLIC

1. Some delay is inherent in the review

PROCESS

2- If author disagrees with reviewing agency's

DECISION AND WISHES TO CHALLENGE IT,
PUBLICATION MAY BE DELAYED FOR MONTHS
OR EVEN YEARS

B- IT HAS POTENTIAL FOR ABUSE

1- Necessarily involves the exercise of

JUDGMENT AS TO WHETHER PUBLICATION WOULD
REVEAL CLASSIFIED INFORMATION OR SCI

2 - Reviewing agency may consciously or

UNCONSCIOUSLY TAKE A MORE RESTRICTIVE
VIEW OF MATERIAL THAT IS CRITICAL RATHER
THAN FAVORABLE

5 - Gives government advance notice of,

AND OPPORTUNITY TO DISARM, CRITICISM

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q. Even if the system operates neutraIIy,

IT IS UNSEEMLY FOR THE GOVERNMENT TO
PRESCREEN MATERIAL DEALING WITH
GOVERNMENTAL AFFAIRS THAT IS INTENDED
FOR PUBLICATION

IV* Given this tension between the government's

COMPELLING INTEREST IN PREVENTING DISCLOSURE OF
SCI AND CLASSIFIED INFORMATION, AND THE PRESENT
OR FORMER EMPLOYEE ' S FIRST AMENDMENT INTEREST IN
BEING ABLE TO SPEAK FREELY ON MATTERS OF PUBLIC
INTEREST, PREPUBLICATION REVIEW MAY BE REQUIRED
ONLY WHERE, AND TO THE EXTENT, NECESSARY TO
PROTECT THE GOVERNMENT'S INTEREST

A- Supreme Court's cases recognize that, even

WHEN RESTRICTIONS ON PROTECTED SPEECH ARE
JUSTIFIED BY A COMPELLING GOVERNMENTAL
INTEREST, SUCH RESTRICTIONS MUST BE CLOSELY
DRAWN TO AVOID IMPINGING UNNECESSARILY ON

FIRST AMENDMENT INTERESTS

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See Snepp v- United States , 444 U-S- 507, 509
N -3 (1980) (ENFORCING SNEPP's CONTRACTUAL AGREE-
MENT AS "A REASONABLE MEANS FOR PROTECTING THIS
VITAL INTEREST" IN PROTECTING THE SECRECY OF
INFORMATION AND THE APPEARANCE OF CONFIDEN-
TIALITY, AND CITING CASES UPHOLDING OTHER
RESTRICTIONS ON POLITICAL ACTIVITY AS LEAST
RESTRICTIVE MEANS OF SERVING COMPELLING GOVERN-
MENTAL INTERESTS).

B- Touchstone is reasonableness; prepublication

REVIEW REQUIREMENT THAT IS MORE RESTRICTIVE
THAN NECESSARY TO SERVE THE GOVERNMENT'S
INTEREST IS INVALID

C- A FACIALLY INVALID RESTRICTION ON PROTECTED
SPEECH IS NOT JUSTIFIED MERELY BFCAUSE IT
IS IMPOSED BY AN ADHESION CONTRACT

V- The Snepp directive's prepublication review

REQUIREMENT IS UNREASONABLE IN SEVERAL RESPECTS

A- Applies to all personnel who have access to

SCI

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There are vast differences between

INTELLIGENCE- PERSONNEL , WHOSE DUTIES
CENTER ON THE GENERATION AND REVIEW OF
SCI, AND POLICY-MAKING OFFICIALS, WHOSE
DUTIES CENTER ON NONCONF I DENT I AL MATTERS
AND ONLY INCIDENTALLY INVOLVE THE USE
OF SCI AND CLASSIFIED INFORMATION

a- Policy-makers are less likely to

DISCUSS INTELLIGENCE OR NATIONAL
SECURITY INFORMATION IN PRINT
BECAUSE THEIR FOCUS IS ELSEWHERE

b- Policy-makers are better able to

SCREEN OUT SCI AND CLASSIFIED
INFORMATION BECAUSE IT CONSTITUTES
A RELATIVELY SMALL AND READILY
-IDENTIFIABLE PORTION OF THE INFORMATION
THEY RECEIVE, AND BECAUSE THEY CAN
"WRITE AROUND" IT WITHOUT DESTROYING
THE CONTINUITY OF THEIR ARGUMENTS

c- There is a higher public interest

IN FREE COMMENT BY POLICY-MAKERS, PRESENT

AND PAST

272

- 7 -

d. Prepublication review requirements

TEND TO BE MORE BURDENSOME FOR
POLICY“MAKERS THAN FOR INTELLIGENCE
PERSONNEL BECAUSE POL I CY“MAKE RS
FREQUENTLY ARE CALLED UPON TO SPEAK
OR WRITE ON MATTERS AS TO WHICH TIMING
IS CRUCIAL

2- These differences justify treating

POLICY-MAKING OFFICIALS DIFFERENTLY THAN
INTELLIGENCE PERSONNEL

B. Directive does not distinguish between different

KINDS OF MATERIAL INTENDED FOR PUBLICATION

1* Prepublication review of speeches,

INTERVIEWS AND OTHER ORAL STATEMENTS IS
TOTALLY IMPRACTICAL AND PLAINLY

UNREASONABLE, ESPECIALLY FOR PRESENT AND FORMER
POLICY-MAKERS

A* Both NSC and CIA apparently recognize

THAT FACT BECAUSE THEY DO NOT REQUIRE

PRIOR CLEARANCE OF ORAL STATEMENTS IN PRACTICE

273

- 8 -

b» Until 1980, policy-makers were not

SUBJECT. TO PRIOR REVIEW, AND NO MAJOR
DAMAGE WAS DONE

c • Directive and implementing agreements

SHOULD BE CHANGED TO ELIMINATE
REFERENCE TO PREPUBLICATION REVIEW
OF ORAL STATEMENTS

2* Prepublication review of letters to the

EDITOR, OP-ED PIECES AND THE LIKE
IS IMPRACTICAL IN MANY CIRCUMSTANCES

A- IN MOST CASES, TIMELINESS OF PUBLICATION
IS CRUCIAL

b- Delays inherent in the review process

MAY DESTROY THE OPPORTUNITY FOR OR
EFFECTIVENESS OF COMMENTARY

c- Thus, a prepublication review requirement

THAT APPLIES TO OP"ED PRICES AND THE
LIKE IS PARTICULARLY TROUBLESOME AND
IS JUSTIFIABLE ONLY WHERE THERE IS A
CLEAR DANGER THAT SCI WILL BE DISCLOSED

274

- 9 -

d. There is little danger that pol icy-makers

WILL INADVERTENTLY DISCLOSE SENSITIVE
INFORMATION BECAUSE THEIR COMMENTS
GENERALLY CONCERN POLICIES RATHER THAN
SPECIFIC FACTUAL MATTERS AND THEREFORE
CAN BE PRESENTED AT A LEVEL OF
GENERALITY THAT ENABLES THEM TO
OMIT POTENTIALLY SENSITIVE
INFORMATION

— Prepublication review is not

EFFECTIVE IN PREVENTING DELIBERATE
DISCLOSURES BECAUSE IT CAN BE
CIRCUMVENTED - E * G • S 'NEPP

E • Thus, if prepublication review of op-ed

PIECES AND THE LIKE IS TO BE REQUIRED
AT ALL , THE REQUIREMENT SHOULD BE
CONFINED TO INTELLIGENCE PERSONNEL

5* Prepublication review of books probably

IS JUSTIFIED FOR INTELLIGENCE PERSONNEL

a- Books involve more detail and thus

E GREATER POTENTIAL TO CONTAIN
SENSITIVE INFORMATION

275

- 10 -

b* Timing of publication of books

ORDINARILY IS LESS IMPORTANT; FOR EXAMPLE,.
A 30-DAY PREPUBLICATION DELAY IS LIKELY
TO BE TOLERABLE

c • Many former policy-makers submitted

BOOKS FOR PREPUBLICATION REVIEW EVEN
BEFORE Sjj. E p p . DIRECTIVE WAS ISSUED, AND _

HAD NO DIFFICULTY OBTAINING CLEARANCE

d* Nevertheless, recognizing dangers

OF PREPUBLICATION REVIEW, ADMINISTRATION
SHOULD REAFFIRM PERIODICALLY ITS
COMMITMENT NOT TO ALLOW THE PROCESS
TO DETERIORATE INTO A MECHANISM FOR
CENSORING CRITICISM

Directive requires that personnel having access
TO SCI SUBMIT TO PREPUBLICATION REVIEW TO
SCREEN OUT BOTH SCI AND CLASSIFIED INFORMATION,
WHEREAS PERSONNEL HAVING ACCESS ONLY TO CLASSIFIED
INFORMATION NEED NOT SUBMIT TO P RE PUBL I CAT I ON
REVIEW AT ALL

276

- 11 -

1. If prepublication review for classified

INFORMATION IS NOT NECESSARY TO SERVE THE
' . GOVERNMENT'S COMPELLING INTEREST IN ONE

CASE, IT IS NOT NECESSARY IN THE OTHER

2. Conditioning access to SCI on agreement to

SUBMIT TO PREPUBLICATION REVIEW FOR CLASSIFIED
INFORMATION THEREFORE IS UNREASONABLE AND POSSIBLY
CONSTITUTIONALLY IMPERMISSIBLE*

3* Therefore, prepublication review should

BE REQUIRED ONLY WHEN THERE IS REASON
TO BELIEVE THE MATERIAL INTENDED FOR
PUBLICATION CONTAINS SCI

VI* Given the Administration's policy of "strenuously
pursuIing] any violations" of prepublication

REVIEW AND CONFIDENTIALITY OBLIGATIONS, A5 FED*

Reg* '15,052 (Sept* 9, 1981), the Shepp directive's

BROAD REQUIREMENT THAT ALL PERSONS HAVING ACCESS
TO SCI SUBMIT TO PREPUBLICATION REVIEW OF VIRTUALLY
ALL THEIR PUBLIC STATEMENTS UNREASONABLY BURDENS

FIRST AMENDMENT RIGHTS

278

- 13 -

D- Legitimate and protected speech thus might be

DETERRED, TO THE DETRIMENT OF THE PUBLIC AND
RESPONSIBLE GOVERNMENT

VI 1- Conclusion: £ne.E.p directive should be replaced with

A prepublication review requirement that is narrower, less

RESTRICTIVE AND MORE CLOSELY TAILORED TO THE PROBLEM AT
WHICH IT IS DIRECTED-

279

Wilmer. Cutler & Pickering

llo-o f,-cjTtcn

DIRECT LiMC 'iOZ)
672-6100

•eee * s- n. w

Washington, d. c. soooe

C*eLC ADDRESS' WICR'NG WASH., O C,

International tciexi ^*0-229
tClcx- e»-?*oJ
TttCRMONE 202 B72-ROOO

January 27, 1984

Honorable Don Edwards / Chairman
Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
House of Representatives
Washington/ D. C. 20515

EURCBEAN off tCE
I COLLCCl mile
LONDON, IC*R 2RA (t.Ck»NC

telecnonc ot-ise-fAOi
TCLCx fc« ! 66 S2*2
CABLE ACIBtSE. WICB'NP »ONDON

Honorable Patricia Schroeder, Chairwoman
Subcommittee on Civil Service
Committee on Post Office and
Civil Service
House of Representatives
Washington, D. C. 20515

Dear Mr. Edwards and -Ms . - Schxoeder :

This will acknowledge and thank you for your
letter of January 18, 1984 concerning National Security
Decision Directive 84.

I believe the best way to answer your questions
is to enclose a copy of my testimony before the Senate
Committee on Governmental Affairs on this subject.

Sincerely,

Lloyd N.

Cutler

Enclosure

280

R. T. DAVIES

3331 LELAJTD STREET
CHEVY CHASE, MAJiYIAJND 2C815>

(301) 034.3014

February 9, 1984.

Dear Congresswoman Schroeder and Congressman Edwards:

I am replying to your inquiry of January' 25.

Since I left government service, I have contributed a chapter to a
book and written a number of newspaper and magazine articles related,
variously, to my former employment as an officer of the American Embassy
at Warsaw 1947-49, at the Embassy in Moscow 1961-63, as Deputy Assistant
Secretary of State for European Affairs 1970-72, and as ambassador to
Poland 1973-78. In all of these positions, I had access to classified
information and, in the latter two, to SCI as well. I did not submit
any of my writings, or parts of them, for prepublication review and am
consequently unable to reply bo questions 4 and 5 of your letter.

I do want to comment on question 6. Your suggestion that officials
might submit "only those portions of writings which might contain
classified information" does not address the question of who is to
determine what is and what is not classified information. A large
percentage of the documents that are classified at the time of origina-
tion end up being over-classified within a period of time that is much
shorter than any of those specified in the automatic downgrading provi-
sions, Technically, the material may still be classified, awaiting the
advent of the downgrading deadline, but already be in the public domain.
Usually, the only element of such a document which needs protection is
the source.

If you give the Department of Justice the half-loaf of a directive
such as that which is implied in the above quotation frcm question 6,
you will, I think, either leave the present situation unchanged, because
former employees will remain the judges of what "might be classified,"
or, depending upon the way the directive is written and/or interpreted,
give Justice the very authority it seeks under the directive as new
drafted.

It comes down to whether the government can trust the people it
employs to exercise discretion not only while they are employed, but
thereafter, as well. So far as I am aware, the government has been well
served by the overwhelming majority of its retired employees, with the
obvious exceptions of former Presidents, Secretaries of State (Dean Rusk
apart) , and National Security Advisers. Even here, I am not aware that
much damage has been done by the efforts of these worthies to capitalize
upon their official positions and experience.

The Honorable

Patricia Schroeder and Don Edwards,

122 Cannon House Office Building,

Washington, D. C. 20515.

281

As for SCI, it is my recollection that I had to sign a nondisclo-
sure agreement before access was given. There is no reason why such an
agreement should not include a provision for prepublication review of
material dealing with the subjects covered; in fact, I think the
various agreements I signed had such a provision.

Sincerely,

282

THE INSTITUTE FOR INTERNATIONAL ECONOMICS

11 Dupont Circle, N.W., Washington, D C. 20036
(202) 326-0583 Telex: 248329 CHIP

January 26 , 1984

The Honorable Patricia Schroeder
The Honorable Don Edwards
Subcommittee on Civil Service
Committee on Post Office and
Civil Service

122 Cannon House Office Building
Washington, DC 20515

Dear Members:

In response to your inquiry of January 18, I worked in
the legislative and executive branches of U.S. Government
from 1965 to 1971, before joining the foreign policy
research community. I had security clearances when I worked
for the Bureau of the Budget and the Department of
Agriculture. I did not have one when consulting for the
State Department in 1976, or for the Carter reorganization
program in 1977-79.

During the earlier period, I had access to classified
but not SCI information.

I have written frequently on subjects I dealt with in
the government:' executive reorganization and international
food policy are two examples. I have never published
classified information obtained during government service.
I've also never submitted anything for formal
preclearance. I have, however, been very careful not to
take unfair advantage of inside access that I had while in
Government. And I have, on occasion, checked out portions
of draft articles or books with responsible government
officials to make sure they felt that I was not divulging
privileged information, whether classified or not.

I find such informal procedures to be immensely
preferable to pre-publication review, and in my case they
have worked out satisfactorily. I feel strongly that former
officials who had access to classified or sensitive
information should respect their obligations concerning that
information. I think it is ridiculous that persons who had
access to SCI information are now asked to clear everything
they write; certainly this should be limited to language
that they feel may contain classified material. And since I
personally make my living through writing about government
policy and policymaking, the continuation of the current

283

Reagan Administration requirement would be, for me, a strong
disincentive to serving in a government post where one had
access to such information.

I attach my list of previous positions and
publications .

Sincerely

Senior Fellow

Enclosure

284

December 1983

RESUME
I? M. "Mac” Destler

1478 Waggaman Circle
McLean, Virginia 22101
Phone: (703) 827-0761

Institute for International Economics
U Efcipont Circle, N.W.

Washington, D. C. 20036
Phone; (202) 328-0583

Born: Statesboro, Georgia
August 21, 1939

Married, two children

Present Position :

Fran July 1983: Senior Fellow, Institute for International Economics ,
Washington, D.C. , writing book on U,S, trade policymaking for the 'Twentieth
Century Fund.

Previous Positions :

1977-1983: Senior Associate an d Director, Project on Executive-Congressional
Relations in Foreign Policy, Carnegie Endowment for International Peace ,
Washington, D.C.

1976-1977 : Senior Fellow, Foreign Policy Studies , Brookings Institution :
completed study of U.S. foreign economic policymaking with emphasis on interplay
of domestic and international policy objectives and interests. (On leave,
March-June, 1977) .

March-June, 1977: Consultant on Reorganization of the Executive Office of the
President, Office of Management and Budget : coordinated preparation of
comprehensive report to the President on^proposed organizational and procedural
changes; served as principal analyst on economic policymaking institutions.

1972-1976: Research Associate, Foreign Policy Studies, Brookings Institution :
organized and co-authored two related books on politics of postwar U.S. -Japanese
relations; inaugurated foreign economic policymaking study; directed
congressional staff seminar on U.S. -Japanese relations.

1971-1972: Visiting Lecturer in Public and International Affairs, Woodrow
Wilson School, Princeton University : taught courses on American foreign policy
and tiie world food problem, and graduate seminar on foreign affairs bureaucracy.

1970-1971: Consultant for Special Programs (half-time) , American Rareign
Service Association : helped develop program (Face-to-Face) of dialogue between
foreign affairs officials and other Americans involved in international issues.

1969-70: International Affairs Fellow , Council on Foreign Relations , and Guest
Scholar , Brookings Institution: wrote book on U.S. government organization for
foreign affairs.

285

1967-1969: Program Analyst and Acting Regional Coordinator for Asia,
International Agricultural Development Service , U.S. Department of
Agriculture : headed office responsible for technical assistance projects;
analyzed impact of U.S. aid programs on overseas economic development.

February-September 1967: Staff Associate, President’s Ihsk Force on Government
Organization : did research, - interviewing , wrote staff papers /etc. , on foreign
and domestic policy organizational issues.

1965-1967: Assistant to Senator Walter F. Mondale: wrote speeches, developed
and managed legislative proposals, did general staff work in foreign affairs,
education, economic policy, etc.

1961-1963: Peace Corps Volunteer (Assistant Lecturer in Political Science ,
University of Nigeria) : taught international relations, helped organize and
teach general freshman social science course.

Other Professional Activities :

Trustee, Japan-Amer ican Society of Washington, D.C., 1983-.

Coordinator, luncheon seminar series for Japanese correspondents based in
Washington, 1977- .

Director, study on politics of economic disputes, Japan-U.S. Economic Relations
Group, 1980.

Consultant on national security policymaking. Presidential Management Panel,
National Acadeny of Public Administration, 1979-80.

Associated Staff, Brookings Institution, 1978-80.

Lecturer on legislative processes at seminar for legislative administrators,
Ehugu, Nigeria, sponsored by Nigerian Government and U.S. International
Communications Agency, 1979.

Consultant on Peace Cbrps reorganization. Office of Management and Budget, 1979.

Professorial Lecturer, School of Advanced International Studies, Johns Hopkins
University, 1976-77.

Consultant, U.S. Department of State, 1976.

Consultant, Commission on the Organization of the Government for the Conduct of
Foreign Policy, 1973-75.

Senior Consultant, United Nations Association Policy Panel on "Foreign Policy
Decision-Making: The New Dimensions," 1972-73.

Member: Council on Foreign Relations, 1970-; American Political Science
Association, 1971- {Publications Committee, 1982-83); Arms Control Association,
1977- .

33-307 0 — 84 -

286

Education

Ph.D. 1971 and M.P.A. 1965, Woodrow Wilson School of Public and International
Affairs, Princeton University.

B.A. magna cum laude in Government, 1961, Harvard College.

Books:

Presidents, Bureaucrats, and Foreign Pal icy: The Pali tics of Organizational
Be form , Pr inceton~ University Press, 1972 (expanded paperback edition, .1974)'.

Managing .an Alliance: Ibe Politics of U.S. -Japanese Relations , Brookings
Institution, i976'n"co-authore^"wi^lHid^"&tb, Priscilla Clapp and Haruhiro
Pukui) .

The Textile Wrangle: Conflict in Japanese-Amer ican Relations 1969-1971 , Cornell
University Press, 1979 (co-authored with Haruhiro Fukui and Hideo Sato; Japanese
edition by Nihon Keizai Shimbun press) .

Making Foreign Economic Policy , Brookings Institution, 1980.

Coping with U.S. -Japanese Economic Conflicts , Lexington Books, 1982, (co-edited
with Hideo Sato; Japanese edition by Nihon Keizai Shimbun press) .

(Xtr Cwn Worst Enemy: "Ihe Unnak ing of American Foreign Policy , Simon and
Schuster, forthcoming 1984 (co-authored with Leslie H. Gelb and Anthony Lake) .

Articles:

A. United States-Japanese Halations

"The Wrong Approach to Japanese Trade," Washington Post , March 16, 1983.

"How Not to Negotiate: Some "Thoughts on Our Current Trade Flap with Japan," in
U.S. Bouse Foreign Affairs committee, Government Decision-Making in Japan:
Implications for the U.S. , 1982, pp. 89-100.

"Locomotives on Different Tracks: Japanese-American Macro-Diplomacy, 1977-1979"
(oo-authored with Hisao Mitsuyu) , in Destler and Sato, Poping with U.S. -Japanese
Economic Conflicts , 1982, pp. 243-69.

"United States -Japanese Relations and the American Trade Initiative of 1977: Was
"Ibis 'Trip* Necessary?" in William J. Barnds, editor, Japan and the United
States: Challenges and Opportunities , New York University Press (for the Council
on Foreign Relations) , 1979, pp. 190-230.

"Is History Repeating? Ihe 1969-71 Textile Dispute and the Current Trade
Crisis," Chuo Koron, April 1978 (in Japanese), pp. 86-99.

"Trading with Japan: A Repeat of History?" Washington Post, December 31, 1977.

"Sato's Textile Diplomacy," two-article series in Asahi Journal , Tokyo, July 1
and 8, 1977 (in Japanese, co-authored with Haruhiro Fukui and Hideo Sato).

287

"Country Expertise and U.S. Foreign Policymaking: The Case of Japan," Pacific
Community, July 1974, pp. 546-64. (Brookings reprint 298.) Published in
expanded form in Morton A. Kaplan and Kinhide Mushakoji, eds., Japan, American,
and the Future Word Order, 1976.

B. United States Foreign Economic Policymaking

"United States Congress and the Tokyo Round: Lessons of a Success Story," The
World Economy/ June 1980, pp. 53-70 (co-authored with Thomas R. Graham) .

"Trade Reorganization: Leading from Strength," Testimony before House Oarmittee
on Ways and’ Means, September 7, 1979.

"United States Trade Policymaking During the 'Tokyo Round,'" in Michael Blaker,
editor, The Politics of Trade: U.S. and Japanese Policymaking for the GATT
Negotiations , East Asian Institute, Columbia University, 1978.

"'Reforming' Trade Politics: The Weakness of Ways ?nd Means," Washington Post,
November 28, 1978.

"United States Food Policy 1972-1976: Reconciling Domestic and International
Objectives," International Organization , Summer 1978, pp. 617-53.

"The Economic Policy Group and Short-Term Social Security Financing," an
analysis prepared for the President's Reorganization Project, June 1977, and
incorporated in that project's Decision Analysis Report .

"Congress and Trade Policy: Is the Game Changing?", 1983.

"Protection for Congress? The Politics of Trade Policy," 1978;

— Papers prepared for the Carnegie Endowment Project on Executive-Congressional
Relations.

C. Executive Branch: Policymaking and Organization

"State: A Department or 'Something More?'" in Duncan L. Clarke, editor, Defense
and Foreign Policy: Coordination and Integration, JAI Press, forthcoming 1984.

"The Evolution of Reagan Foreign Policy," in Feed I. Greenstein, ed. , The Reagan
Administration: An Early Assessment , Johns Hopkins University Press, 1983, pp.
117-58.

"Controlling Arms and the Men," New York Times , February 15, 1983 (co-authored
with Robert H. Johnson) .

"Our Secretary of State Problem," The Baltimore Sun , July 2, 1982.

"A Lost Legacy? The Presidency and National Security Organization 1945-1960,"
U.S. Military Academy Synposium, April 1982.

"National Security: The Rise of the Assistant," in Hugh Heclo and Lester M.
Salomon, editors, The Illusion of Presidential Government , Westview Press (for

288

the National Academy of Public Administration) / 1981, pp. 263-85. (See also
Political Science Quarterly, Winter 1980-81, pp. 573-88.)

"Reoi.. >»\nization: When and How?" and "Implementing Reorganization.," in Peter L.
Szanion, ed. , Federal Reorganization: What Have We Learned? , Chatham House,
1981, pp. 114-30 and 155-70.

Testimony on "The National Security Adviser: Role and Accountability," before
Senate Committee on Foreign Relations, April 17, 1980.

"A Job That Doesn’t Wbrk," Foreign Policy, Spring 1980, pp. 80-88.

"National Security Advice to U.S. Presidents: Some Lessons from Thirty Years,"
World Politics , January 1977, pp. 143-76. (Brookings reprint 323.)

"Developing Better Specialists and Executives— AGAIN?? Obstacles to the
Implementation of Personnel Reforms in the State Department," final report on a
contract research study for the Department of State, August 1976.

"The Nixon System: A Further Look," Foreign Service Journal , February 1974, pp.
9-14, 28-29. (Brookings reprint 2867)

"Multiple Advocacy: Sane Limits and Costs," American Political Science Review ,
September 1972, pp. 786-790.

"The Nixon NSC: Can One Man Do?" Foreign Policy , Winter 1971-72, pp. 28-40.

"State and Presidential Leadership," Foreign Service Journal, September 1971,
pp. 26 ff.

D. Congress and Foreign Policy

"Congress" in Joseph S. Nye, Jr., editor, The Making of America's Soviet Policy ,
Yale University Press (fof the Council on Foreign Relations), forthcoming 1984,
chapter 3.

"The Elusive Consensus: Congress and Central America," prepared for the
forthcoming book on U.S. policy options in Central America, edited by Robert S.
Leiken, Pergamon International (for the Carnegie Endowment), forthcoming 1984.

"Congress and Reagan’s Foreign Policy," The Washington Quarterly , forthcoming
Winter 1984 (co-authored with Eric R. Alterman) .

"Dateline Washington: Life After the Veto," Foreign Policy , Fall 1983, pp. 181-

86 .

"Defense Dollars: Squeezing for the Long Term," Los Angeles Times , December 15,
1982 (co-authored with Pat Towell) .

"Congress Swings [chi Central America Policy]", Foreign Service Journal ,
July/August 1982, pp. 19-21, 38 (co-authored with Patricia Cohen) .

289

"Reagan/ Congress* and Foreign Policy in 1981," in Norman Ornstein, editor.
President and Congress: Assessing Reagan's First Year, American Enterprise
Institute, 1982, pp. 66-88. (See also The Washington Quarterly, Spring 1982,
pp. 3-15.}

"Unruly, Fragmented Congress Wears Down President's Foreign Policy," Los Angeles
Times, October 25, 1981.

"AWACS: The Early Warning Was Loud and Clear," Washington Post, October 25,

1981.

"Dateline Washington: Congress as Boss?" Foreign Policy, Spring 1981, pp. 167-
80.

"Trade Consensus; SALT Stalemate: Congress and Foreign Policy in the Seventies,"
in Thomas Mann and Norman Ornstein, eds., The New Congress, American Enterprise
Institute, 1981, pp. 329-59.

"Executive-Oongressional Conflict in Foreign Policy: Explaining It, Coping With
It," in Lawrence C. Dodd and Bruce I. Oppenheinver, eds., Congress Reconsidered ,
second edition, Congressional Quarterly Press, 1981, pp. 296-316.

"Foreign Policy Begins at Home," AEI Foreign Policy and Defense Review ,
September -October 1980, pp. 8-11.

"Treaty Troubles: Versailles in Reverse," Foreign Policy, Winter 1978-79, pp.
45-65.

"A Reverse Pendulum in Executive-Congressional Relations?" 1982;

"SALT II and the Senate," 1978 and 1979;

"Congress and Foreign Policy Staffs: The Best as Ehemy of the Good?" 1979;
"Learning from Panama," 1978.

— Papers prepared for the Carnegie Endowment Project on Executive-Congressional
Relations.

290

Bakes & Daniels

SUITE 600 1020 H STREET N.W.

"WASHINGTON, ». C. 80036
2OE*r30*X5e5

810 FLETCHER TRUST BUILDINO
INDIANAPOLIS. INDIANA 46204*3464
317-630-4636

February 17, 1984

Honorable Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service

D.S. House of Representatives
Washington, DC 20515

Dear Chairman Edwards

and Chairwoman Schroeder:

In response to your letter of January 18, 1984,
which has been forwarded to me at my new address (above) , my
answers to your questions are as follows:

(1) Since leaving government service, my published
writings have been limited to op-ed pieces in daily
newspapers.

(2) I was Chairman of the U.S. Delegation to the
Strategic Arms Limitation Talks (1978-80) and Director of
the U.S. Arms Control and Disarmament Agency (1980-81). I
did have access to classified information, including sensitive
compartmented information (SCI) .

(3) The pieces which have been published were
based entirely on the public record and, therefore, contain
no classified information. I did not submit any of them for
prepublication review.

291

Honorable Don Edwards February 17, 1984

Honorable Patricia Schroeder Page 2

(4) Not applicable.

(5) Not applicable.

(6) I do not believe that former government
officials with access to SCI should be required to submit
their publications for prepublication review. However, if I
had any question as to whether a portion of my writings
might contain classified information, 1 believe that I would
make such submission voluntarily.

Sincerely yours,

Ralph Earle II

RE;gdj

292

SAMUEL D. EATON

INTERNATIONAL CONSULTANT
■4995 GLENBROOK ROAD, N. W.
WASHINGTON, D. C. 20016

(202) 362-2077
(202) 229-5800

February 10, 1984

Patricia Schroeder and
Don Edwards

Committee on Post Office and
Civil Service

Subcommittee on Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Mr. Edwards and Ms. Schroeder:

I am pleased to provide the information you requested in your
letter of January 25, 1984 on my experience with pre-publication
review within the governemnt.

1. My writing for publication occurred primarily while X
was still in government. In early 1981 a book of mine
on'*the political transition in Spain, entitled The Forces

of Freedom in Spain , was published by the Hoover Institution.
Since retirement, an adaptation of a part of that book has
been published as a part of a set of documents released by
the Fletcher School of Law and Diplomacy, and in the Spanish-
American Chamber of Commerce Monthly. I am now attempting
to arrange for publication of the book in Spanish.

2. I was a career Foreign Service Officer who held a variety
of positions dealing with economic, political and program
management matters for 34 years. My final two positions were
Deputy Chief of Mission in Madrid from 1974 to 1978 and Depu-
ty Assistant Secretary of State for Inter-American Affairs
from 1979 to 1984. In those positions I had access to the
highest classified information, including SCI.

3. Since I was personally aware of the reasons for classi-
fication of the classified material that provided background
for my book, I felt qualified to judge personally what could
not be used in the book. The entire manuscript was submitted
for pre-publication review.

4. My manuscript was submitted for review to a designated
officer in the Bureau of Public Affairs of the Department
of State who also obtained the views of the Spanish desk

293

officer. I was not required to make any changes. The
process took about two months.

5-6. I believe that expanding pre-publication review
to cover publication by retired personnel of sensitive
information relating to intelligence collection*, living
personalities , and critical foreign policy issues is
logical. However, to be effective, (a) the type of
information must be narrowly and carefully defined,
and (b) the coverage must extend to the top political
officials of our government and members of Congress
who have access to sensitive information as well as to
the bureaucracy.

I have no objection to these comments being made a
part of the public record.

Sincerely,

Samuel D. Eaton

SE : ds

294

Boston University

Center for Internationa! Relations
152 Bay State Road
Boston, Massachusetts 02215
617/353-9278

Office of the Director

February 13, 1984

Patricia Schroeder, Chairwoman
Subcommittee on Civil Service
Committee on the Post Office and
Civil Service

U.S. House of Representatives
122 Cannon House Office Building
Washington, D. C. 20515

Dear Chairwoman Schroeder:

Thank you for your letter of January 31, 1984, asking certain
questions in connection with President Reagan's National
Security Decision Directive 84 of March 11, 1983. I understand
that the Subcommittee on Civil on Constitutional Rights of the
Committee on the Judiciary and the Subcommittee on Civil Service
of the Committee on Post Office and Civil Service are jointly
exploring the Directive and the need for it. I am happy to give
you my views. The paragraphs that follow are based on the num-
bers of the specific questions asked:

1) Since leaving the Foreign service of the United States in
June, 1979, I have been at Boston University where I hold
three separate functions: Distinguished University Pro-
fessor of International Relations, Director of a Center for
International Relations, and Chairman of the Political
Science Department. I am also on the Board of Trustees of
various American colleges and universities, as well as on
the Board of Governors of various professional organiza-
tions. A copy of my C.V. is attached, which may explain the
range of my interests.

In the above context, my writings since leaving the Foreign
Service have fallen into two general categories: a) those
dealing with the Middle East situation as it has evolved
since 1979, and b) a number of purely historical works. In
the fiirst of the two categories, there have been articles on
"Security Considerations in the Persian Gulf ( International
Security ) . "Camp David - Improving the Framework" ( Foreign
Policy ) . "Sadat: The Making of an American Public Image"
( Middle East Insight ), "A Peg-Legged Quadrille: The United
States, Israel, Egypt and the Palestinians" ( Middle East
Insight ) , etc. I have also written various Op-Ed articles

295

Chairwoman Patricia Schroeder
Page 2

February 13, 1984

in the Christian Science Monitor and elsewhere. I have also
had a book in preparation on "U. S. -Egyptian Relations -
1973-79.-

In addition to these published works, I have written various
papers for meetings of professional organizations dealing
with the Middle East and have given various speeches at such
sessions. An example is “U.S. Diplomacy in the Arab World
Since Camp David." which was published in The Challenge to
U.S. Interests in the Arab World , by the Amer ican-Arab
Affairs Council. I have also given such lectures outside
the Boston University framework in as widely dispersed
places as Tokyo, Cairo, Vienna, Oslo, London, Anchorage, Ann
Arbor, Providence, Philadelphia, etc. - in other words, both
in this country and abroad. Finally, in my University Pro-
fessor context, I teach two courses each semester having to
do with the contemporary Middle East.

Since most of my 32 years of government service was spent
working in or on the Middle East, there is clearly a rela-
tionship between that professional experience and my
writings and lectures. It is impossible for one such as me
not to draw on my long experience in the Middle East when
writing and lecturing. It is precisely this long experience
that I would hope gives value and meaning to my comments and
judgments on contemporary Middle East issues.

2) From 1942-46, I was an officer in the United States Army,
serving in North Africa, Italy and the European Theater of
Operations. From 1947-79, I was a Foreign Service Officer.
During these years, I served in Tehran, Jidda, Aden, Yemen,
Baghdad, Washington, London, Tripoli (Libya), and as
Ambassador to Saudi Arabia (1965-70), and Ambassador to
Egypt (1973-79). My Washington assignments, apart from a
tour at the National War College, included the positions of
Officer of Baghdad Pact (CENTO) Affairs, and Arabian
Peninsula/Near East Regional Affairs Officer.

Throughout my government service, I had access to classified
information. Indeed, I was myself responsible for classi-
fying various information that I reported from one or
another of ray posts. At various times I also had access to
SCI, especially in ray ambassadorial capacities.

296

Chairwoman Patricia Schroeder
Page 3

February 13, 1984

One point must be emphasized in connection with classified
information. Almost anything classified at a particular
point in history tends over the years to become less sensi-
tive. This is partly because of the natural erosive quality
of our classification procedures, the Freedom of Information
Act and the fact that virtually every American president,
secretary of state, or political ambassador writes ex-
tensively about his experience in office. What was sensi-
tive, say, ten years ago is, with rare exceptions, no longer
so. I think this is a natural phenomena which we should all
recognize, but which the Reagan Directive obviously does not.

3) None of my publications or lectures was intended deliber-
ately to reveal national secrets. I believe that I have as
much concern about the security of this nation as President
Reagan or anyone else in this or any other Administration.

I start from that basis.

Having these considerations in mind, I wrote my articles or
prepared my lectures without seeking access to classified
information. I did, however,, draw upon my own over thirty
years of experience with United States policy in the Middle
East in preparing writings or lectures. Where necessary, I
have always sought to obtain collateral material from pub-
lished sources. The point is, that my writings and lectures
are based on my personal knowledge, not on documents.

Granted, some of this personal knowledge may at one time or
another been classified - by me - but it is my personal
knowledge. And, if my memory does not serve me correctly,
it is I who am responsible for whatever mistakes are made.

My writings and lectures have been critical of various as-
pects of United States policy in the Middle East and es-
pecially of the utterly inept handling of Middle East policy
by the Reagan Administration. These criticisms have been
based upon my deep knowledge of the area and its leaders and
have deplored the apparent unwillingness or inability of the
Reagan Administration to try to understand the political and
social dynamics of the Middle East scene and to base policy
judgments upon proper estimates rather than ideological
blinders .

297

Chairwoman Patricia Schroeder
Page 4

February 13, 1984

Prior to leaving the Foreign Service, I submitted all draft
articles to the Department of state for prepublication re-
view. Since leaving the Foreign Service in 1979, I have not
submitted any of my articles or lectures for prepublication
review. Instead, I have relied upon my own discretion and
judgment in seeing to it that no sensitive information was
disclosed.

I am considering sending ray draft book, when completed, on
"U.S. -Egyptian Relations - 1973-79," to the Department of
State for pr ep\i.blication review, but I am frankly concerned
that there is no. one in the Department who knows as much
about the subject as I do. I say that not out of immodesty,
but because much of the book is based upon six years of
daily contact with the late President Sadat and his
officials. X know what Sadat thought and did, not from
occasional speeches of his or reports, but from almost daily
conversations. I ask myself, who is there in the entire
Department of State, the Secretary of State included, who is
in a position to have the same knowledge?

It bothers me, therefore, that a manuscript of that sort
should have to be submitted to people who lack the detailed
knowledge about the subjects being discussed and could ask
for changes on the basis of ignorance, capriciousness or
simply Reagan ideology.

4) As indicated above, while still in the Foreign Service, I
submitted various articles to the Department of State for
prepublication review. They were usually submitted either
to the Historical Division or to the appropriate Desk
Officer. I was never asked to delete any material. As a
rule, the persons to whom I sent the draft indicated that
they did not know that much about it. In most instances,
for an article at least, it took between four and eight
weeks to get a response from Washington. From the writer's
end, this is a long time. At the same time, having myself
once been a Desk Officer, I know how many other things
he/she has to attend to in the course of a normal frenetic
day.

5) I have no objection in principle to the prepublication
review process, provided it is applied in a rational
manner. I believe that retired officials, at least most of

298

Chairwoman Patricia Schroeder
Page 5

February 13. 1984

those that I have known, are sensible, sincere persons.

They value the security of the United States as much as
anyone in government. At the same time, they may have deep
reservations about some aspects of past or present United
States policy. Moreover, they often have a depth of know-
ledge. based on personal experience, that gives broader
perspective to issues than is the case with almost any ad-
ministration.

I think it would be criminal for the Reagan Administration
to try to censor the expression of any dissenting views
based upon a retired official's own experience, personal
knowledge and judgment. Indeed, such a muzzling effect -
which is the way I read the Reagan Directive - would be a
disservice to this nation and to former officials who in-
vested their lives in seeking to further the nation's for-
tunes.

Most retired officials are and remain responsible. They do
not have to be told their responsibility toward the welfare
of the nation by the Reagan or any other administration.

What is more, they have a contribution to make to a better
understanding of the issues involved and ought to be en-
couraged to make that contribution without legal restraint.
Even though a president's policies may be criticized by such
retired officials, the nation in the long run gains from
this. .

A prepublication review process, in my judgment, is not the '
most appropriate and effective means of preventing dis-
closure of classified information. This should be left to
the retired officials concerned. If they have doubts about
anything they want to say, in terms of publicly compromising
classified information, I am confident that most such
officials will take the time to check it out with appro-
priate officials still serving in government. Granted,
there may be a few who do not - and I have in mind some
sensationalizing ex-CIA officers - but I believe such per-
sons are few in numbers and that this is a risk that our
democratic and constitutional system warrants taking.

6) I am against the whole idea of mandating that former

government officials submit all publications, including
speeches and lectures, for prepublication review. For

299

Chairwoman Patricia Schroeder
Page 6

February 13, 1984

someone such as myself, whose livelihood now depends upon ray
university lectures, it would practically throttle my whole
teaching career. I have less problem with the idea that
former government officials submit only those portions of
writings that might contain classified information for pre-
publication review, providing that there is some assurance
of a) such prepublication review being done by officials who
really know something about the issue involved and do not
simply censor on the basis of their own preferences or
Reagan ideology, and b) that there be an expeditious reply.
My preference would be, nevertheless, even to avoid this and
to leave it to the discretion of former government officials
as to what should be checked out before publication.

I am frankly disturbed about the Reagan Directive. I think it
fires scattershot at a minor problem which could be handled more
effectively in other ways. If I believed that the purpose of
the Directive was a genuine effort to protect the security of
the United States, I would have more sympathy for it. I sus-
pect, however, having observed for the last three years how the
Reagan Administration operates, that it represents primarily an
oblique effort to muzzle criticism. That, in my judgment,
should not be permitted.

I very much hope that the two Congressional committees that are
studying the Directive, as well as the appropriate Senate
committees doing so, will reject the Directive as unnecessary
for the purposes indicated and an infringement on the consti-
tutional rights of a particular class of American citizen.

Please let me know if I can be of further help. I am sending
this identical letter to Congressman Don Edwards.

Sincerely,

/?/

Hermann Frederick Eilts
director

HFE : cc

300

CURRICULUM VITAE

HERMANN FREDERICK EILTS

POSITION

Boston University

Distinguished University Professor of International
Relations, 1979 - present.

Director, Center for International Relations, 1982 -
present.

Chairman, Department of Political Science. 1982 - present.
PREVIOUS POSITION

Foreign Service Officer. Career Minister.

DATE AND PLACE OF BIRTH

March 23, 1922; Weissenf els/Saale , Germany.

PERSONAL HISTORY

Immigrated to the United States in 1926 with parents.
American citizenship obtained in 1930 through derivation
from father.

MARITAL STATUS

Married to former Helen Josephine Brew. Two sons: Conrad
Marshall Eilts, Frederick Lowell Eilts.

EDUCATION

Primary and secondary schools, Scranton, Pennsylvania.

Ursinus College, Collegeville , Pennsylvania, 1939-42, B.A.
(with distinction) .

Fletcher School of Law and Diplomacy, Medford,
Massachusetts , 1942.

School of Advanced International Studies, Johns Hopkins
University, Washington, D. C., 1946-47, M.A. (with
distinction) .

Foreign Service Institute, Washington, D.C., 1950, Arabic
and Middle East Studies.

301

Hermann'.Frederick Eilts

2 .

EDUCATION (Cont.)

University of Pennsylvania, Philadelphia, Pennsylvania,
1951-52. Middle East Studies.

Dropsie College, Philadelphia, Pennsylvania, 1951-52,

Middle East Studies.

National War College, Washington, D.C.. 1961-62, Diploma
(with distinction).

Army War College, Carlisle, Pennsylvania, 1972, Diploma
(with distinction).

MILITARY SERVICE

United States Army, 1942-46, First Lieutenant, Military
Intelligence, North African and European Theatres of
, Operation.

MILITARY DECORATIONS

Purple Heart, Bronze Star, Seven European/North African
Campaign Stars.

PROFESSIONAL SERVICE

United States Ambassador to Egypt. Cairo, Egypt, 1973-79.

Deputy Commandant and Diplomatic Adviser, Army War College,
Carlisle Barracks, Pennsylvania. 1970-73.

United States Ambassador to Saudi Arabia, Jidda, Saudi
Arabia, 1965-70.

Counsellor and Deputy Chief of Mission, Charge d’Affaires,
American Embassy, Tripoli, Libya, 1964-65.

First Secretary, American Embassy, London, England,
Political Offficer handling all Middle East and Cyprus
Affairs, 1962-64.

Department of State, Washington, D. C. , Of f icer-in-Charge .
Arabian Peninsula and Near Eastern Regional Affairs,
1960-61.

Department of State, Washington, D.C., Officer-in-Charge,
Baghdad Pack (CENTO) /SEATO Affairs, 1957-59.

Second Secretary, American Embassy, Baghdad, Iraq, Chief of
Political Section. 1954-56.

302

Hermann .Frederick Eilts

PROFESSIONAL SERVICE (Cont.)

Consul and Principal Officer, American Consulate, Aden,
Arabia (concurrently accredited as Second Secretary to
non-resident American Legation, Taiz, Yemen, and American
Consul, British Somaliland), 1951-53,

Third Secretary, American Embassy, Jidda. Saudi Arabia,
economic and political work, 1948-50.

Third Secretrary, American Embassy, Tehran, Iran, consular
and administrative work, 1947-48.

Joined Foreign Service through examination process. July
1947.

Member of United States' delegations to various
international conferences (UN. NATO, CENTO. SEATO,
US/Egyptian/Israeli meetings, including the Camp David
Summit) .

PROFESSIONAL HONORS

Arthur S. Fleming Award for Distinguished Government
Service, 1953.

Department of the Army, Distinguished Civilian Service
Decoration, 1972.

Ursinus College, Alumni of the Year Award, 1974.

Department of State, Distinguished Honor Award, 1979.

Joseph C. Wilson Award, 1979.

Egyptian Collar of the Nile, First Class, 1979.

Johns Hopkins University, Distinguished Alumnus Award, 1980.
UNIVERSITY HONORS

Ursinus College, LL.D., 1959.

Boston University, LL.D., 1978.

Dickinson School of Law. LL.D., 1978.

Cairo University, Cairo. Egypt. Ph.D., 1979.
Juniata College, L.H.D., 1980.

Baltimore .Hebrew College. L.H.D., 1983.

303

Hermann. Frederick Eilts

4 .

MEMBERSHIP IN PROFESSIONAL ORGANIZATIONS
Royal Geographic Society, Fellow.

Royal Asiatic Society, Fellow.

Royal Society for Asian Affairs, Fellow.

Middle East Institute, Member.

Pennsylvania Historical Society. Member.

Essex Institute, Salem, Massachusetts, Member.

Peabody Museum, Salem, Massachusetts, Fellow.

American Foreign Service Association, Member.

Council on Foreign Relations, Member,

Middle East Studies Association of North America, Member.
Washington Institute of Foreign Affairs. Member.

The Shaybani Society of Muslim International Law, Member.
Institute of Yemeni Studies, Member.

The American Academy of Diplomacy, Member.

PROFESSIONAL ACTIVITIES

American University in Cairo, Board of Trustees.

Middle East Institute, Board of Governors.

Brookings Institution, Steering Committee, Project on
Energy and National Security (for US Department of Energy).

Ursinus College, Board of Directors.

Middle East Research Institute, University of Pennsylvania,
Development Advisory Committee.

American-Arab Affairs Council, Diplomatic Advisory
Committee .

Wharton Econometric Forecasting Associates, Advisory Board.
Strategic Review, Editorial Board.

304

Hermann “Frederick Elite

PROFESSIONAL ACTIVITIES (Cent.)

Management International Consultants and Advisors, Advisory
Board,

Bank of Boston, Middle East Consultant,

National Council on U.S.-Arab Relations, Advisory Committee.

Center for Middle Eastern Studies, Harvard University,
Faculty Associate.

American Association of Islamic Studies, Villanova
University, Advisory Committee.

Dewey F. Bartlett Program, Energy and Security Studies for
the Center for Strategic & International Studies.

Georgetown University. Executive Council.

Journal of south Asian and Middle Eastern Studies,

Villanova University, Editorial Board,

PUBLICATIONS

Ahmad bin Na^man's Mission to the United States in 1840:

The Voyage of al-Sultanah to New York City , 1942 (third
printing) in both English and Arabic.

Sawid Muhammed bin 'Agil of Dhufar: Malevolent or
Maligned ? . 1973.

"Security Considerations in the Persian Gulf , M
International Security . Fall 1980, Vol. 5. No. 2.

"Saving Camp David: Improve the Framework," Foreign Policy,
Winter 1980-81. No. 41.

150 Years of Friendship and Commerce , A Sesquicentennial
Commemoration between the United States and Oman, United
States Information Agency publication, 1983, in both
English and Arabic: reprinted by The Embassy of the
Sultanate of Oman as Oman-U.S.A.: 150 Years of Friendship ,
1983.

Numerous articles and book reviews,

LISTED IN

Men of Achievement , 6th edition. International Biographical
Centre. Cambridge. England,

Community "Leaders an Noteworthy Americans . American
Biographical Institute.

305

‘Hermann -Frederick Eilts

6 .

LISTED, IN (Cent.)

The Blue Book , 1976, St. Martin's Press.

The International Who’s Who . 1984-85 and previous, Europa
Publications, London, England.

Who's Who in the World . 6th edition, 1982-83 and previous.
Marquis .

Who's Who in America , 43d edition, 1983-84 and previous.
Marquis.

Who's Who in Government . 3d edition, 1977-78 and previous.
Marquis.

Who's Who in American Politics . 1975-76, Marquis.

12/83

306

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S^brid&tZ&rv, ^jwrbiyJtHzriux, f&##2

January 21, 1984

The Honorable Patricia Schroeder
Chairwoman

Committee on Post Office and Civil Service
House of Representatives
Washington, D.C. 20515

Dear Ms. Schroeder:

Thank you for your letter of January 18, 1984.
I am complimented that you solicits my views on the
oUbject of classified information. I was involved
in that field a good bit of my official life but
will confine my remarks to your questions, which
deal only with my efforts as an author.

1. My publication efforts have largely
involved non-fiction books, although X have written
a few columns and book reviews. Only one book,
STRICTLY PERSONAL, a memoir published in 1974,
dealt at all with my former government employment.

2, Positions held in Federal Government:

Army Officer, 1944-1963

AC/S, G2 (Intel) 3d Inf Div, Korea, 52-53
War Plans, Army General Staff, 1957-58
White House Asst Staff Secretary 1950-61
US Ambassador to Belgium, 1969-71
Chairman, Interagency Classification Review
Committee (Presidential), 1972-73.

I had access to SCI (Codeword Material) in
all above assignments, especially in the White
House.

307

3- I used my own best judgment as to what
material to include and what to leave out when
writing STRICTLY PERSONAL. (I passed up a couple of
goodies.) And I was particularly careful to avoid
any codeword material which, incidentally, was of
very little interesting anyway, since the codeword
documents on the U-2 had been declassified,

I did not submit any material for review
because I had no need to request access to
documents in governmental hands. I was managing
editor for my father, Dwight D. Eisenhower, when he
wrote his memoirs, THE WHITE HOUSE YEARS, and I
dealt with the same subjects in far less detail
than we had in writing his two volumes. Therefore,

I simply used the same material, condensed,
supplemented by my own observations of those years.

I realize that my experience in this case is
far from typical,

4. In a previous book, THE BITTER WOODS, 1969,
I requested access to a joint US-British
intelligence document put out by Supreme
Headquarters, Allied Expeditionary Force, just
befo're the Battle of the Bulge, 19 44. I was
informed that in exchange for access to this one
document, I would be required to submit my entire
manuscript for review. I therefore waived access to
all classified documents in governmental hands and
simply interviewed the people who wrote them.

5. The prepublication review process does not
seem to me to be enforceable. By and large only the
conscientious people will be inhibited by it
whereas irresponsible people who ignore or even
flout it will probably go unpunished because of
public antipathy toward even reasonable
safeguarding of governmental secrets. The

308

prepublication review provision should probably be
kept on the books, however, as a matter of general
principle .

It seems to me that there should be a wider
gap between the seriousness accorded to violating
significant security information (such as
disclosure of advanced military technology and
matters of diplomatic delicacy) and the trivial
revealing of merely embarrassing matters.
Unfortunately, people who have the power to
classify information as secret and above tend to
protect themselves by stamping everything.

6. SCI should be guarded carefully and
restricted to only a few people - and they should
be held strictly accountable for its protection.
However, to require anyone who EVER had access to
SCI to submit ALL writings and speeches for the
rest of his life does not seem at all feasible. The
government cannot employ enough people to review
all the submitted material. Furthermore, this
requirement might discourage anyone with a
proclivity for writing and speaking from ever
taking a job in government.

I hope all this is of some remote use. Like
any other citizen, I am available to help in any
way I can if you desire further opinions and views.

Sincerely ,

309

Guy Feliz Erb
President

February 13, 1984

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service

Committee on Post Office and Civil Service

and

The Honorable Bon Edwards
Chairman

Subcommittee on Civil and Constitutional Rights
Committee on the Judiciary

House of Representatives

122 Cannon House Office Building

Washington, D.C. 20515

Dear Chairwoman Schroeder and Chairman Edwards:

In reply to your letter of January 13, I submit the following
answers to your questions concerning National Security Decision
Directive 84:

1. Some newspaper op-ed pieces and monographs that I have
published were related to, but did not refer in detail
to, my experiences in government.

2. Member, National Security Council Staff (1977-1980) and
Deputy Director of independent Federal agency, the Inter-
national Development Cooperation Agency (Level III)
(1981). I received all appropriate clearances.

3. No classified information was used or referred to in my
publications .

4. On joining the NSC staff in 1977, I submitted
publications prepared prior to my government service to
the Deputy National Security Advisor for prepublication
review. These materials did not draw on classified
information and were quickly cleared. No materials were
submitted for prepublication review after I left
government service.

CFE, Ltd., Suite 700, 1835 K Street, N.W., Washington, D.C. 20006, 202-466-2930, Telex: 89-7423 EOS-WSH

310

Th« Honorable Patricia Schroeder
and

The Honorable Don Edwards
February 13, 1984
Page Two

The nature of the expanded use is critically
Any expansion should be carefully drafted to
individual rights.

important.

safeguard

6. Yes.

It is my hope that these answers will be of use to you

Sincerely,

OFE: tgb

311

THE ANALYTIC SCIENCES CORPORATION

1700 N Moore St, Suite 1220. Arlington, VA 22209. tel 703*658-7400

Dr Jacques S Gorier

8 March 1984

Congresswoman Patricia Schroeder
Chairwoman

Committee on Post Office and
Civil Service

Subcommittee on Civil Service
122 Cannon House Office Bldg,

Washington, DC 20515

Dear Congresswoman Schroeder:

In response to your letter of February 8, on President
Reagan’s March 11* 1983, National Security Decision Directive 84,
I am pleased to respond to your questions.

As a general response, I do not object to the require-
ment that an employee submit for prepublication review all
writings ’’which contain or purport to contain any restricted or
classified information” since the release of such information
clearly is not in the national interest (which is, of course,
the purpose of having classified the information in the first
place) . However, it appears that an interpretation of that
intent to require that former government officials with access
to SCI information submit all publications for prepublication
review goes well beyond the directive intent — since it appears
to include information which does not contain or purport to
contain any classified information. I believe this is a par-
ticularly important distinction since the release of classified
information is completely wrong while the requirement for pre-
publication review of all publications by an individual simply
because he has at one time in his life held SCI clearances is
equally wrong (and, correspondingly, the requirement that the
employee sign a statement to that effect prior to receiving his
SCI clearances would be similarly inappropriate).

312

With regard to your specific questions:

1. I have done a great deal of writing since having
left the government. This includes a book ( The Defense Industry ,
MIT Press, 1980), chapters in other books, numerous articles
in professional journals (e.g. , Foreign Policy, International
Security), and newspaper articles e.g., New York Times, Wash-
ington Post, Los Angeles Times. I have not published any works
of fiction. In general, since I was a senior defense official
and since much of the material that I have published is in the
general national security area, it is certainly indirectly re-
lated to my former government employment. I have not, however,
published any material which contained any classified data or
any data related to any classified efforts with which I was
involved .

2. During my five years in the Office of the Secretary
of Defense, I held the position of Deputy Assistant Secretary
of Defense (Materiel Acquisition) from 1974 to 1977, and the
position of Assistant Director for Defense Research and Engi-
neering (Electronics) from 1972 to 1974. In these positions I
had access to classified information and access to SCI infor-
mation.

3. I did not submit any publications that I have written
since leaving the government to the Defense Department for any
prepublication review or approval, since I was extremely careful
to be sure that all of the material which I have written was
clearly unclassified. I have always made sure that at least
one associate reviewed all material that 1 have published for
both substantive' content as well as the possibility of inadver-
tent security information, but this was done to assure more the
quality of the work since I was personally acting as the censor
for any possible security information. I believe that the best
method for assuring that I did not publish any classified infor-
mation was simply to act on the overly-cautious side and omit
any information ?lf I thought there was a possibility of it being
classified .

4. Not Applicable.

5. Not Applicable.

313

6. As noted above, I do not believe that requiring all
former government officials with access to SCI information to
submit all publications, including speeches and lectures, for
prepublication review would be appropriate. While I am not a
lawyer, it would appear as though this is a considerable restric-
tion of freedom of speech, and certainly, at the very least, the
inconvenience of going through the process would greatly discour-
age people from writing. However, by contrast, I feel equally
strongly that classified material should not be published --
because of its potential harmful effects to our nation's secur-
ity. Thus, I do believe that if there is any question, the
appropriate thing to do would be to submit it for prepublication
review (and to have an appropriate requirement for relatively
rapid review thereof). Thus, I would have the wording of any
such requirement be clear that if there is any doubt as to whether
or not the material might be classified, then it should be sub-
mitted -- placing the responsibility for such a decision on the
part of the author, but making it clear that in the shaded area
the appropriate action is the submittal of the material for
review.

Like the President, I am concerned about the excessive
leakage of national security information within the United States.
However, it would appear as though restricting an individual,
simply because he or she has had SCI clearances, from publica-
tion of any and all material without a prepublication release
from the Federal Government is an undue restriction, and simply
limiting that restriction to that material which might be poten-
tially damaging would seem to be a reasonable compromise.

Sincerely,

Japques S. Gansler

JSG/rlg

314

MASSACHUSETTS \
INSTITUTE OF TECHNOU

CENTER FOR
INTERNATIONAL STUDIES

Eugene B. Skolnlkoff Cambridge, Massachusetts

Director 02139

Room E53-487

Telephone: {617} 253-5236
Cable: CENIS

February 29, 1984 -

1884

Congressman Don Edwards
Congresswoman Patricia Schroeder
U.S* House of Representatives
122 Cannon House Office Building
Washington, DC 20515

Dear Congressman Edwards and
Congresswoman Schroeder:

I write in response to your letter of January 31 concerning National
Security Decision Directive 84.

1. Since leaving the government in 1979, I have published articles in two
journals, written a book chapter and prepared a book manuscript that will be
published shortly. Some of this writing was related to my former government
employment. One article and the book chapter dealt with issues for which I
had major responsibility while in the government. I did have access to
classified information, including SCI.

2. I was a senior policy analyst in the Office of Science and Technology
Policy, Executive Office of the President from June 1977 to June 1979 and a
consultant to that office until January 1981. I have also been a consultant
to the Nuclear Regulatory Commission and the Office of Technology Assessment.

3. I have never submitted written material for prepublication review. One
of my publications related to a subject, nuclear nonproliferation, about which

I had access to classified information while I was in the government. However,
the article did not deal with classified aspects of the subject.

4. Not applicable.

5. I have no experience with the prepublication review process.

6. I have carefully reviewed the Directive and other material accompanying
your letter and find no language clarifying the scope of the requirement for
prepublication review required of persons with authorized access to SCI.

No statement is made whether this applies to:

* to all published material of such persons;

* publications dealing with subjects for which classified information
or SCI exists;

315

Edwards and Schroeder
Page Two

February 29, 1984

* publications dealing with subjects for which classified Information
or SCI exists and to which the person had access;

* publications dealing with classified aspects of a subject; or

* publications dealing with classified aspects of a subject to which
the person had access to the classified information or SCI.

Because no procedure or criteria are presented for how to decide whether review
is needed, the most reasonable interpretation would seem to be the first and
the most restrictive one.

The result of this requirement would be that someone like myself, who had
access to SCI in only a few limited areas would have to submit to prepublication
review of all future scholarly and popular publications. Even aside from possible
constitutional issues, about which I am not expert, this would constitute a very
significant and most debilitating interference with and inhibition of scholarship
and public debate. Some interference and Inhibition are surely warranted to protect
national security, but I see no justification whatsoever for requiring prepublica-
tion review of all publications of persons who have had access to SCI.

If a more limited scope is intended, the question then becomes which of the
four possibilities I have listed or other meaning is intended, what should be
the criteria for deciding in each case whether prepublication review is needed,
and who will make the judgment. Such critical matters are simply not addressed
in the Directive and therefore it is very difficult to comment on appropriateness.

% own preliminary judgment would be that prepublication review should be
required only for those portions of writings dealing with classified subjects
to which the author actually had access. I see no reason why this should apply
only to SCI, but might well apply to all classifications (except perhaps confi-
dential). That leaves open whether the author or someone else decides whether,
in each instance, such review is necessary. It also leaves open the criteria to
be used for prohibiting publication (what if, for example, a classified fact is
not asserted by the author, but rather quoted on the evidence of another
publication without actually being endorsed by the author?) and whether some
time limit should not be required for the review so as not to permit restraint
from lasting indefinitely absent a finding of violation.

I am very happy that you have decided to take up this important matter. It
is one of great importance both to national security and to the preservation of
informed public debate and quality scholarship. It is also much more complicated
than the President's Directive even begins to take into account. I would be pleased
to provide whatever further help I can.

Si ncerely,

Ted Greenwood

TG/mm

316

4016 Moss Place
Alexandria, Virginia 22304

March 16, 1984

The Honorable Don Edwards
Chairman

Subcommittee on Civil and Constitutional Rights

Committee on the Judiciary

U.S. House of Representatives

122 Cannon House Office Building

Washington, D.C, 20515

Dear Congressman Edwards:

I am happy to respond to your letter of February 8, 1984
regarding National Security Decision Directive 84.

Since my retirement in 1977, after 35 years' service in
the United States Navy, I have devoted my time to writing and
lecturing specializing in international political-military
affairs and maritime history. This is not a new endeavor for
me since I began writing as early as 1952 while still on active
duty. My published works include books, articles, and comments
on a wide variety of subjects (a list is enclosed) some of which
relate to various responsibilities and experiences I had as a
naval officer.

From 1957 onward, I held positions in the Office of the
Secretary of Defense and the Department of the Navy while ashore
and several commands at sea. During those years, I had access
to various levels of classified information up to and including
some which were probably compartmented . I do not recall the
specifics .

Prior to retirement, all prospective publications were
submitted to the Department of the Navy for clearance either by
myself or by the publisher. Since retirement, they have not.

To insure that classified information does not even inadvertently
creep into my writings, I have studiously avoided contact with
persons I know within the government relying exclusively on open
sources--newspapers , magazines, et cetera-"for factual information
to support my statements and conclusions. In particular, I have
avoided any reference to subjects encompassing either classified
technical or sensitive information to which I formerly had access.

My previous experience with submission for review has
generally been time-consuming, frustrating, and a waste of
not only my time but the bureaucratic reviewers. Deletions were
confined to matters of opinion and wholly irrelevant editorial
changes. In no case was classified information encountered or

317

The Honorable Don Edwards
Page Two
March 16, 1984

deleted. To impose upon me the requirement to submit my work--
writings, speeches and lectures--for pre-review and clearance
would make my current endeavors impossible.

It is not clear to me from your letter if the contemplated
directive would require "all former government officials with
access [currently] to SCI information" to submit everything for
review or if that constraint would apply to me forever. In both
cases I am opposed to the intent of the directive and, in the
latter circumstances , vehemently so* *

What is needed, in my judgment, are laws which would make
it possible to prosecute anyone who knowingly discloses classi-
fied information without prior governmental authorization. The
political considerations aside, I believe that Daniel Ellsberg's
role in publication of the so-called Pentagon Papers is a perfect
example. There were other means- available to him for achieving
the ends he sought. That he could not be held accountable in a
court of law was tragic.

Our nation places special trust and confidence in those
to whom its secrets are revealed, and this is the way it should
be in a democracy. Rather than create a monstrous bureaucracy to
sift through the works of literally tens of thousands of former
government officials, consultants and others, the approach should
be to fashion laws to deal adequately with those who would violate
that trust.

I have no objection to the foregoing remarks and the
enclosure being made a part of the public record. Please accept /
my appreciation for the opportunity to comment on the directive./

I urge you and your colleagues to decapitate this ill-advised
initiative.

Sincerely yours ,

Robert^J. Hanks

Rear Admiral, USN (Ret.)

Enclosure

33-307 0-84 11

318

Published Works Robert J. Hanks

4016 Moss Place
Alexandria, VA 22304
(703) 370-8928

**The Thin Blue Line"

U.S. Naval Institute Proceedings , October, 1964
"Sea Fight at Fayal"

U.S. Naval Institute Proceedings , November, 1967

U.S. Naval Institute Annual Prize Essay Contest
1968: "The High Price of Success"

1969: "The Paper Torpedo"

1970: "Against All Enemies"

"Commodore Lawrence Kearny, the Diplomatic Seaman"

U.S. Naval Institute Proceedings , November, 1970

"A Pitiful Babe in Snowland"

The Boston Globe , 14 February 1971

"Pro Army Can Create Military Caste"

The Washington Post (Outlook), 14 February 1971

"The Treaty That Never Was"

Shipmate , November 1971

America Spreads Her Sails
CKapter One, 1973

Red Star Rising at Sea

Commentary on Chapter Five, 1974

Book Review: Soviet Naval Influence
Strategic Review , Fall 1977

"Indian Ocean Arms Talks: Rocks and Shoals"

Strategic Review , Winter 1978

"Admiral Says His Sinai Air Base Statements Twisted by Columnist'
Commentary, The San Diego Union , 23 April 1978

U.S. Naval Institute Annual Prize Essay Contest

1979: "U.S. National Strategy: Outward Bound...

With Inadequate Charts" 1st Prize

"The Strategic Tremors of Upheaval in Iran"

Strategic Review , Spring 1979
With Dr. Alvin J. Cottrell

"A Fifth Fleet for the Indian Ocean"

U.S. Naval Institute Proceedings , August 1979

2nd Prize
3rd Prize
1st Prize

- 1 -

319

’’The Regional Politics of the Red Sea, Indian Ocean and

Persian Gulf.” Middle East Contemporary Survey, Volume i
Two 1977-78 , With Dr. XTvTn J. Cottrell

"The Future Role of Iran." The U .S , Role in a Changing World
Political Economy : Major Issues~£or t~Ke 96th CorTgress .

Wit 077 " A Ivin J. Cottrell

"Conflict in Iran"

Conflict , Volume 1, Number 3, 197 9

"The Geopolitical Situation in the Persian Gulf"

The Impact of the Iranian Events upon Persian Gulf £

United States Security

"Commodore Jones and His Private War with Mexico"

The American Wes t , November/December 1979

Arms Transfers and U.S . Foreign and Military Policy

Significant Issues Series, the Center for Strategic and
International Studies, The Georgetown University
With Alvin J. Cottrell and Michael Moodie

Book Review: The Boer War

Strategic Review , Spring 1980

U.S. Naval Institute Annual Prize Essay Contest

1980; "The Swinging Debate" 2nd Prize

"Amerikanische Flottenpolit ik in den achtziger Jahren"

Europa Archiv, Volume 16, 25 August 1980

The Military Utility of the U.S. Facilities in the Philippines
Significant Issue Series, The Center for Strategic and
International Studies, The Georgetown University; 1980
With Alvin J. Cottrell

The Unnoticed Challenge : Soviet Maritime Strategy and the

Globa~l~~Choke Points , I n s t i t u tcT for Foreign Policy Analysis,
Cambridge , Mass.: August 1980

"Military Affairs in the Persian Gulf" Chapter 7 in The

Persian Gulf States , The Johns Hopkins University Press,
Baltimore: 1980

"Of Minerals, Metals, and U.S. Foreign Policy"

South Africa Journal , October 1981

Oil and Security in the Arab Gulf

Resume of paper presented at an international symposium,
Arab Research Centre, London, December 1980

- 2 -

320

Oil and Security in U.S. Policy Towards the Arabian
Gulf-Indian Ocean Area" Islamic Defense Review
Volume 5, No. 4, Islamic Institute of Defense
Technology, London, 1980

The Cape Route : Imperiled Western Lifeline , Institute for
Foreign Policy Analysis, Cambridge , Mass . : 1981

"The Strait of Hormuz: Strategic Choke Point"

With Alvin J. Cottrell in Sea Power and Strategy in
the Indian Ocean , Center for Strategic and International
Studies , beorgetown University, Beverly Hills: 1981

"Rapid Deployment in Perspective"

Strategic Review, Spring 1981

"Maritime Doctrines and Capabilities: The United States
and the Soviet Union"

The Annals , September 1981

"The U.S. Presence in the Indian Ocean"

Hoagland, MacLachlan Newsletter, December 1981

The Pacific Far Eas t : Endangered American Strategic Position ,
Institute for Foreign Policy Analysis, Cambridge, Mass.:

"Oil and Security in U.S. Policy Towards the Arabian
Gulf-Indian Ocean Area."

Oil and Security in the Arabian Gulf , London: Croom Helm
in associaition with the Arab Research Centre, 1981

"Send In the Marines?"

Los Angeles Times , July 8, 1982, p. 7B

U.S. Strategy at the Crossroads : Two Views , Co-author,

Institute~Tor Foreign Policy Analysis, Cambridge, Mass.:

The U.S. Military Presence in the M iddle East

Serialized in Persian Gulf Arab newspapers. In Arabic.

"Out of Europe and Back to Sea"

Los Angeles Times , September 13, 1982

"Whither U.S. Naval Strategy?"

Strategic Review , Summer 1982

"Modern Principles of Maritime Strategy"

Contemporary Maritime Strategy , University of Pretoria,
Pretoria, Republic of South Africa, August 1982

"A Sea of Discord"

Sea Power , December 1982

1981

1982

- 3 -

321

The U.S. Military Presence in the Middle East :

Problems and Prospects , Institute for Foreign
Policy Analysis, Cambridge, Mass.: 1982

’’The ’Pocket* Navy Emerges”

Strategic Review , June 1983, Institute for Strategic
Studies /University of Pretoria, Pretoria, South Africa

Southern Af rica and Western Security , Institute for
Foreign Policy Ana 1 y s is, Camb ridge, Mass.: 1983

The Unnoticed Challenge (Japanese language edition), Gakuyo
Shobo, Publishers, Tokyo, Japan: 1983

’’The Prime ’Lesson* of the Falklands War”

South Africa International , October 1983

’’Political Instability, Aggression and Oil Supply Security:
Threats and Scenarios”

In World Energy Supply and International Security,

Ins ti tut e^or Foreign Policy Analysis, Cambridge,

Mass.: 1983

- 4 -

322

HALLE

PLACE DE LA TACONNERIE 1
CH-1204 GENEVE
TtL < 022 ) 21 79 05

Chairpersons Don Edwards and Patricia Schroeder,
Committee on Post Office and Civil Service,
Subcommittee on Civil Service,

U. S. House of Representatives,

122 Cannon House Office Building,

Washington, D. C. 20515,

USA

Dear Chairpersons Edwards and Schroeder,

What follows responds to the six numbered questions
addressed to me in your letter of January 25.

1. What I have written in the thirty years since I left
government service has taken the forms of books and articles.
These have not been directly related to my experience in
government, although they have often reflected the under-
standing of international problems that it gave me.

2. Except for absence on military service, I was an officer
of the State Department from late 1941 until the summer
of 1954. I held various positions related to Latin American
affairs, and in the last two or three years was a member
of the Policy Planning Staff in the Office of the Secretary.
Throughout this service I had access to classified informa-
tion, including "top secret." I can't answer the question
about "sensitive compartmented information (SCI)" because
I don’t know what it is.

3. While I was with the Department I met the requirement
that anything to be published by me be submitted to the
publications committee of the Department, to be published
only if cleared by it. Since leaving the government I have
had no occasion to seek clearance for what X have written
because it has not contained classified information.

4. My answer to question 3 above answers the present ques-
tion in part. I recall being refused clearance by the public-
ations committee for one article, not because it contained
classified information but because it might give an unfav-
orable impression of the State Department. I think this
was right in principle.

5. I think the prepublication review process is necessary.
Not knowing the present extent of its use, I can have no

323

opinion on whether it should be expanded.

6. I think it impracticable to have former officials submit
all publications, including speeches and lectures, for pre-
publication review. (I would, as a university professor
in Geneva, have had to submit all the lectures I gave day
after day for clearance in Washington!) However, what might
contain classified information should, I think, be submitted
for clearance.

There is nothing confidential in the above.

Sincerely,

324

W. Ayerell Harkiman
February 20, 1984

Dear Congressman Edwards and Congress-
woman Schroeder:

I have received your letter of January
25 and commend you on your Committees'
investigations into the National Securi-
ty Decision Directive 84.

Enclosed are my answers to your questions.
I hope they will be helpful in your re-
search. My answers are not confidential
and may be made part of the public record.

With best wishes for success,

Sincerely,

The Honorable
Don Edwards and
Patricia Schroeder
Committee on Post Office and
Civil Service

122 Cannon House Office Building
Washington, DC 20515

325

Responses to questions asked by Congressman Don Edwards and
Congresswoman Patricia Schroeder for their Subcommittees and
Committees on President Reagan's National Security Decision
Directive 84:

1. Harriman's writings have appeared in books, magazines, and
newspapers# and have been related to Government employment.

2. Positions held in the Federal Government by Governor Harriman:
1934: Jan - Mar - Administrator Division II, NRA

Mar - May - Special Asst. Administrator, NRA
1934 - 1935 - Administrative Officer, NRA

1941: Jan - Mar - Chief, Materials Branch Production Division

Office of Production Management

1941: Mar -

1943: Oct. Special Representative of the President in Great
Britain, rank of minister

1943: Oct -

1946: Jan - U.S. Ambassador to the USSR
1946: Apr -

Oct - U.S. Ambassador to Court of St. James

1946: Oct.~

1948: Apr w Secretary of Commerce
1948: May -

1950: june - U.S. Representative for Economic Cooperation Act
(Marshall Plan) , rank of ambassador

1950: July

1952: Jan - Special Assistant to the President
1951: Sept-

1952: Feb - US Representative on North Atlantic Treaty
Organization Committee

1951: Oct-

1953: Jan - Director, Mutual Security Agency

1961: Feb -

Dec Ambassador-at-Large
1961: Dec -

1963: Apr - Assistant Secretary of State for Far Eastern
Affairs

326

1961 -62 - US Deputy Representative to the International
Conference on the Settlement of the Laotian
question

July 1963 - Special Representative of the President for the
Negotiation of the Nuclear Test Ban Treaty

1963: Apr -

1965: Mar - Under Secretary of State for Political Affairs

1965: Mar -

1969: Jan Ambassador-at-Large

Jan. 30, 1968: Appointed bv President as Chair-
man, The President’s Commission
for the Observance of Human Rights
Year 1968

Mar 31, 1968 -

Jan 19, 1969 - President's Personal Representative
to Peace Talks with the North Viet-
namese, Paris

In almost all of these positions. Governor Harriman had access
to classified information amd to sensitive compartmented infor-
mation.

3. Governor Harriman' s principal writing, Special Envoy to Churchill
and Stalin: 1941-46 , written with Elie Abel, was not submitted
for review, in whole or in part. This was because the book was
published in 1975, some thirty years after the events described,
and many of the telegrams cited, for example, had already been
published in the Foreign Relations series of the State Department.

4. N.A.

5* Governor Harriman does not believe that expanding the use of
prepublication review is either appropriate or effective.

6. No. Governor Harriman believes the best protection against damag-
ing, premature disclosure rests in the "integrity and wisdom" of
th§ men and women appointed to high office by the President. The
wise retired official knows how to balance national security in-
terests and needs against the public's need to know.

327

MASSACHUSETTS
INSTITUTE OF TECHNOLOGY

CENTER FOR
INTERNATIONAL STUDIES

Eugene B. Skolnlkoff Cambridge, Massachusetts Telephone: (617) 253-8076

Director 02139 Cable: MITCAM

23 February 1984

Don Edwards
Patricia Schroeder'

Subcommittee on Civil Service
Committee on Post Office and Civil Service
U.S. House of Representatives
122 Cannon House Office Building
Washington, DC 20515

Dear Reps. Edwards and Schroeder,

I am writing in response to your letter of January 25 asking for my
response, as a former government official, to your questions regarding the
need for prepublication review.

For the past decade, I have worked intermittently in government service
and in academic institutions. I am currently a Visiting Scholar at the Center
for International Studies at MIT. From 1979 to January 1983, I served as an
Office Director in two Bureaus in the Department of State. During that time I
had access to general classified information and to sensitive information.

My publications deal with political and bureaucratic analysis in the
fields of scientific and technological affairs and oceans Issues and never
with topics that Involve sensitive information. My writings appear as books
and articles in professional journals. In ny writing, I draw only on
information that is already publicly available. In addition, I typically send
my manuscripts to my former government colleagues for criticism and
suggestions. While I do this to ensure the accuracy of my writings, doubtless
they would also notice anything that might be classified information. To
date, that has never occurred.

Expanding the prepublication review process or requiring all former
government officials with access to SCI information to submit all speeches and
publications for prepublication review is neither desirable nor workable. To
require officials who have had access to SCI but never speak on or publish
SCI-relatad issues to submit all articles for review, would be a colossal
waste of time and the taxpayer's dollar. Moreover, many speeches and lectures

are made from notes and cannot adequately be reviewed in advance.

The best way to deal with possible disclosure is to require

prepublication review only for publications that may disclose SCI-related
information. It should be up to the author to determine whether this is a

possibility. If any author does not do so and discloses classified

information, he should be penalized appropriately as a warning to others and a

328

- 2 -

deterrent to further disclosure by the same author. There are a number of
Issues which are classified or sensitive at one point In time but not a few
year later. Classifications on this type of information should be regularly
updated to avoid the possibility that authors would get into trouble for
disclosing information that, while once sensitive, has no reason to remain
classified.

Sincerely yours.

Ann L. Holllck

NSF Visiting Professor

ALH/cl

329

BELOIT, WISCONSIN
53511

(60S) 3(55-3391

OFFICE OF THE PRESIDENT

February 3, 1984

Ms. Helen Gonzales

Judiciary Staff

Subcommittee on Civil and

Constitutional Rights

122 Cannon House Office Building

Washington , D.C. 20515

Dear Ms.

Gonzales :

In response to the letter frcm Don Edwards and Patricia Schroeder
regarding National Security Decision Directive 84, seeking to reduce
the unauthorized disclosure of classified information, ny answers to
the questions are as follows:

1 .

Type of publication - newspaper articles. Sane
related to former government employment; some not.

Access to classified information - yes.

Access to sensitive campartmented information (SCI)-* no
(I am not familiar with the appelation SCI).

No steps taken to ensure that publication contained
no classified information. Did not submit publication
for prepublication review. (3rd question not applicable)

Not applicable

Yes

Sincerely,

1 \ . ' , >

RHH:pl

i i / 1 i,

Roger H. Hull

330

2k?9 Wayfarer Court
Chapel Hill, N.C.

2 7£Ua

February 10, 198 b

Congressman Don Edwards:

Congresswoman Patricia Schroeder:

Dear Mr. Edwards and Ms, Schroeder:

I appreciate your invitation of January 2$ to comment on NSDD 8lw
My answers to your six questions follow. I would be happy if they could
be made public.

1. Since my retirement in 1975, I have written articles on foreign
policy for four newspapers and one magazine. All related directly to my
area of specialization in the government.

2. X was a Foreign Service Officer from 19^6 to 1975* My last
assignment was as Director g£ e the Office of Near Eastern, North African,
and South Asian Affairs in/state Departments Bureau of Research and
Intelligence. I had access to Top Secret, SCI, and other categories.

3. None of my articles was submitted to Washington for prepubli-
cation review. To ensure that they contained no classified information,

I applied the same criteria that I learned from 29 years of moving back
and forth between highly classified official discussions and unclassified
meetings with journalists and other members of the public. — the same cri-
teria I used in assigning classifications to my own official products.

km Having dealt with Washington in one instance under the Freedom
of Information Act to arrange declassification of one of my own products,

I believe that imposition of prepublication review on submissions in the
foreign policy field would take so long as to make many of them outdated
if and when they were ever cleared.

5# In over eight years of close reading of commentary by former
government officials in my area of specialization, I have not been aware
of any serious breaches of security. For reasons cited under Comment
below, I am strongly opposed to expahsion of the prepublication review
process.

6. I see no advantage and considerable disadvantage in adopting
official guidelines for submission of questionable material. As long as
it is up to the individual to determine what material u might contain clas-
sified information 11 , be might as well be allowed to use ^is own judgement
on when r° r erence to Washington is indicated.

Comment:

331

- 2 -

Comment :

In the US system of government, disclosure of classified informa-
tion is a continuing and inevitable phenomenon — much less by inad-
vertence than by deliberate leak, motivated by personal, political, or
ideological factors.

Mandatory prepublication review would damage the national interest
in two ways:

1) It would drive many retired civil servants into the
leakage process.

2) What is much more critical, it would deprive the
nation of views of some of its better qualified
commentators .

Human nature being what it is, every administration would suc-
cumb to the temptation to subvert prepublication review to s tifle
opposition views. Any administration that seeks to impose prepub-
lication review is suspect of seeking this very power. In my own
area of specialization, at least, official US government rele ases
are often so inaccurate, contrived, and self-serving that they cry
out for refutation.

In today 1 s world, there is no perfect democracy, but we continue
to make our own better. In t^is endeavor, public access to the truth
is crucial. I consider NSDD 81* an unconscionable infringement of the
American constitutional system, and a small but disturbing step toward
totalitarianism.

Sincerely,

Curtis F. Jones

Foreign Service Officer, retired

332

Carnegie Endowment for International Peace

February 14, 1984

Congresswoman Pat Schroeder
Subcommittee on Civil Service
Committee on Post Office and
Civil Service

122 Cannon House Office Bldg.

Washington, DC 20515

Dear Ms. Schroeder,

In response to your letter of 18 January, I hope the following infor-
mation is of use.

I have written numerous articles for newspapers and journals since
leaving government service. Ihese articles were on nuclear weapons and
arms control, subjects I dealt with while I served at ACDA and 0MB.

I directed defense program and policy reviews at the Weapons Evaluation
and Control Bureau, where I served from 1978-1981. I then served as a special
assistant in the National Security Division of 0MB until May, 1981. In
both positions, I had access to classified material, including sensitive
compartmental information.

In writing my articles, I made sure that no information appeared
that was not already in the public domain. In my case, this was a fairly
easy task, as I have concentrated on broad policy issues rather than on
details of weapon systems that are quite properly classified. No one,
either in or outside of government, has raised concerns with me over
inadvertent release of classified information from my writings. I have
not submitted my written work in advance to government officials for
prepublication review. Given the policy orientation of my writing, I
would find this distasteful and inappropriate.

I cannot overstate my abhorrence with the idea of requiring former
government officials to submit policy-related materials for prepublication
review. Isn't this remedy more injurious than the disease?

Sincerely,

7 LLuJt /

Michael Krepon

Senior Associate

11 Dupont Circle, N.W. Washington, D.C. 20036 / Phone (202) 797-6400 / Telex 248329 I Cable Interpeace WashmgtonDC

333

V~'

Center for Strategic & international Studies

Georgetown University • Washington DC

January 25, 1984

The Honorable Don Edwards

The Honorable Patricia Schroeder

U.S. House of Representatives

Committee on Post Office and Civil Service

122 Cannon House Office Building

Washington, DC 20515

Dear Chairman Edwards and Chairwoman Schroeder:

I am pleased to respond to your letter of January 18, 1984
concerning NSDD-84 which is intended to curb leaks of classified
information. First, X will make a general statement. Following
that, I will attempt to answer each of your questions.

Every administration becomes paranoid about leaks. The
ironic thing, however, is that much of the leaking occurs at
the most senior political levels of an Administration. Making
the National Security Advisor, the Secretary of Defense, or even
the President, sign a non-disclosure statement or take a lie
detector test appears silly at best.

No matter what administrative or criminal sanctions are
applied, our system is based on individual honor and not upon
the vigilance of its police. We ask our public servants to
sacrifice a great deal in the service of their country; restric-
tions which fundamentally impugn their professional integrity
cannot be in the best interests of the country.

While no one can condone leaks, unless fully intended by
the Administration, information is all too often highly classi-
fied to protect the incompetent rather than the national security.
Although a human trait and therefore understandable, needless
classification is nonetheless a great pity.

Our real strength lies in our own creativity and willing-
ness to accept a degree of chaos — including some leakage of
classified material — in order to maintain our freedoms. The
price of trying to fully "plug the leaks' 1 is far too high for
a truly democratic society to pay.

At this juncture I will attempt to answer your specific
questions :

1800 K Street Northwest, Suite 400 • Washington DC 20006 * Telephone 202/8870200
Cable Address CENSTRAT TWX 710B229583

334

The Honorable Don Edwards
The Honorable Patricia Schroeder
January 25, 1984
Page Two

1. My publications and media appearances include
journal articles and books, op-ed pieces,
radio and television interviews, and congres-
sional hearing appearances.

2. When I was in government I held various positions
including Assistant Director for Government Prepared-
ness in the Office of Emergency Preparedness;

Deputy Assistant Director for Military Affairs,

and later Chief Scientist, for the Arms Control
and Disarmament Agency; a variety of government
consultancies; and transition director in the
Reagan Administration of the Federal Emergency
Management Agency.

In each case I have had access to classified ma-
terial including SCI material. For appearances
before congressional committees, I was required to
get an OMB clearance as well.

3. When I was in government I was required to have all
of my proposed written publications cleared by my
agency. These reviews included classification and
public affairs considerations. In each case I sub-
mitted the entire publication for review.

Now that I am out of government, I have had to
exercise even greater judgment. If an article
contains information that I have learned specifi-
cally as a result of a government consultancy, I
would submit the article for review.

4. When I was in government I had little or no dif-
ficulty getting my articles cleared for open
publication. Normally, I could get clearance
within a week or two.

5. Based upon my experience, an expansion of the pre-
publication review process would have little or no
effect on preventing disclosure of classified infor-
mation. In an atmosphere in which the military
officer or the civil servant feels especially de-
meaned, it is conceivable that the new procedures
may backfire.

335

The Honorable Don Edwards
The Honorable Patricia Schroeder
January 25, 1984
Page Three

6. The directive requiring former government officials
with access to SCI information to submit all publi-
cations for review is just not enforceable. If the
tactics become oppressive, many will give up their
special clearances. As to the matter of submitting
only those portions of writings which might contain
classified information, the process would be doomed
from the start. No reasonable standards could be
set. One might have to rely on the judgment of
former senior officials whose political commitments
to the Administration in office are loose to antag-
onistic.

I hope that my comments are of some use to you. The subject
is perplexing and in some respects not worthwhile. I believe
our present security system works fairly well. To make it
repressive would only further anger a great many dedicated and
articulate former and present officials.

Sincerely,

16aJ

Robert H . Kupperman

Senior Associate

336

AMHERST COLLEGE

AMHERST . MASSACHUSETTS • 01002

Department of Political Science

Telephone: 413 - 542-2338 March 7, 1984

Don Edwards, Chairman

Subcommittee on Civil and Constitutional Rights
Committee on the Judiciary
&

Patricia Schroeder, Chairwoman
Subcommittee on Civil Service
Committee on Post Office and Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Ms. Schroeder and Mr. Edwards:

I am, of course, happy to reply to your letter of January 31, although I fear 1
have little to contribute in the way of personal experience.

1. In answer to your first question, since first leaving the government in 1970,
and again after a period of service in the State Department during 1977-81, I have
written about foreign policy issues in a number of books, newspapers and journals.

The writing certainly concerned issues on which I had worked in government. It
rarely covered personal experiences while a government employee and never, I believe,
revealed classified information. (One of my books, on U.S. policy towards Rhodesia,
included new information about internal policy debates. It relied on interviews with
government officials and did not draw on personal recollections.) In fact, since so
much that the government does quickly becomes public knowledge through the newspapers,
it is surprisingly easy to write about public policy issues without revealing
classified information.

2. I was a Foreign Service Officer from 1962-1970, serving with the Embassy in
Saigon (1963-65); in the Bureau of Far Eastern Affairs (1965-66); as Staff Assistant
to the Under Secretary of State (1966-67); and as Special Assistant to the National
Security Assistant in the White House (1969-70). From 1977 to 1980 I was Director of
Policy Planning in the State Department. I had access to classified information in
all these jobs, including (in some of them) SCI.

3. I used common sense to avoid revealing classified information of which I had
personal knowledge.

4. I have not submitted writings for prepublication review.

5. I haven't had such experience.

6. Such a procedure might be "less effective" in the terms of the Directive
since it would rely on a former official’s discretion in deciding which portions might
contain classified in formation --and the Directive seems designed to avoid reliance on
that discretion. It would be more "effective” iri^reducing the quantities of material
submitted for review. In any case, I believe this compromise to be almost as
cumbersome, chilling and distasteful as the Directive itself. Why not trust former

337

officials to continue to act responsibly after they leave government— and if they act
irresponsibily and illegally, pursue them under relevant laws? With equal treatment
for junior officials who become journalists and very senior officials writing their
memoirs?

Sincerely,

Anthony Lake

Professor of Five-College
International Relations

AL/lmd

338

Joseph LaPalcnnhara, Chairman Campus ii tltlress:

Department oj' Political Science 124 Prospect Street

P.O. Bo* 353 2 Yale Station Telephone;

New Haven, Connecticut 06520-3332 203 436-2471

February 13, 1984

Subcommittee on Civil and Consitutional Rights
U.S. House of Representatives

Honorable Partricia Schroeder, Chairwoman
Subcommittee on Civil Service
Committee on Post Office and Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Mr. Edwards and Ms. Schroeder:

Here are roy answers to your interesting questionnaire. I have no
objection whatever to their being made part of the public record.

1. Articles in learned journals} chapters in books; newspaper
articles.

2. First Secretary (Cultural Section), U.S. Embassy, Rome, Italy,
September, 1980 — August, 1981. Yes, I did have access to
classified information.

3. I have never submitted any of my writings for review.

4. -6. Not relevant in my case, given my response to 3, above.

May I respectfully offer a few observations regarding the matter
of review and the Presidential directive of March 11, 1983.

First, the exhortation to federal employees to refrain from
unnecessary classification and to declassify information that no longer
requires protection will fall on deaf ears. My brief experience at Rome
suggests that the human impulse to "play it safe" is simply overwhelming.
The upshot of this is that we continue to classify an astonishing amount
of information that should be, and oftentimes actually is, in the public
domain.

Second, the spirit of the Presidential Directive of March, 1983, is,
in my view, not in keeping with the norms that should guide a free,
democratic society. At a minimum, the Directive encourages an excessive
bureaucratization which can only mean, in practice, the intimidation of
American citizens, inside and outside the government, who may wish to use
information in the interest of a) scientific or objective analysis or
b) informing the general public regarding issues pertinent to its welfare.

Yule University

Honorable Don Edwards, Chairman

339

Honorable Don Edwards
Honorable Patricia Schroeder
February 13, 1984
page 2

Third, the requirement that federal employees be submitted to examination
by polygraph is offensive in the extreme, in that it involves an invasion
of privacy under threat of unspecified retaliations against those who fail
to conform. It would seem self-evident here that the executive brance has
arrogated to itself a power that appropriately belongs to the judiciary,
where it is also appropriately hemmed in by existing norms.

Last, on the basis of my limited governmental experience abroad, I would
have to say that additional policies aimed at restricting contacts with
journalists will only serve to cripple our diplomatic operations.

Yours sincerely,

Joseph LaPalombara

JL/mca

340

COUDERT BROTHERS

ATTORNEYS AND COUNSELLORS AT LAW
ONE FARRAGUT SQUARE SOUTH
WASHINGTON, D. C.20006

January 23, 1984

The Honorable
Patricia Schroeder
and

The Honorable
Don Edwards

House of Representatives
Washington, D.C. 20515

Dear Congresswoman Schroeder and Don:

X appreciated your letter of January 18th with reference to
National Security Decision Directive 84, and can answer your
questions rather briefly:

Since I left government service, I have done a number of
newspaper articles and occasional columns dealing with issues in
the international area - particularly those in which X was
involved during my government service. I had access to classified
information and sensitive information in each of the three positions
I held - Ambassador to the Organization of American States {1966-
1969); Co-Negotiator of Panama Canal Treaties (1977-1978); and
Middle East Negotiator (1979-1980).

I have never submitted any of my writings for pre-publication
review and took it upon myself to assure that anything I published
did not contain classified information.

My own view is that former government officials who have had
access to such classified and sensitive information might be asked
to submit those portions of their writings which “might contain
classified information" and that this should be sufficient. The
burden of having to submit any writings for pre-publication review
seems to me unnecessary, unworkable and undesirable.

NEW YORK

200 PARK AVENUE
NEW YORK. N. Y. IDIflfl
SAN FRANCISCO

THREE EMBARCAOCRO CENTER
SANFRANCISCO , CA. OAlil
PARIS

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SINGAPORE OIOO
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TELEPHONE
202 7030010
CABLE

”TREDUOC“ WASHINGTON
TELEX

INTLr RCA Z^BSBA
DOMESTIC; BD432

341

Carnegie Endowment for International Peace

February 13, 1984

U.S. House of Representatives
Committee on Post Office and
Civil Service

Subcommittee on Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Sirs:

I enclose my responses to your questionnaire of
January 25, 1984 relating to NSD Directive 84 on
unauthorized disclosure of classified information.

1. Books and newspaper articles (see attached
list) . Generally related to former government
employment in the larger sense, i.e., foreign
and defense policy. Only occasionally related
to my specific duties and fields of assignment
while in government employment.

2. Director for Internal Defense, Politico-
military staff of Secretary of State (Rusk)

1961-63? Special Assistant to Undersecretary
of State (Harriman) and staff director of

NSC Special Group (Counter-Insurgency) 1963-67.

Deputy General Counsel, National Science
Foundation and international legal adviser
(on loan) "National Academy of Sciences 1967-73 .

Access to classified information with top secret
and other clearances , but not familiar with
the particular SCI classification.

3. I did not begin to draw on my State Department
experience in writing for publication until well after
I left the Department. To the best of my knowledge,
every topic I have written about had long been in

the public domain and the subject of prolonged
coverage in the press. Unlike ex-officials like
McGeorge Bundy, Henry Kissinger, et. al., I did
not cart away government documents and consequently
made no use of classified written material. To
the extent that I relied on memory to illustrate
a point I used my own judgement. At no time have
I submitted any article for publication review
and would regard this as an infringement of my
constitutional rights.

4. Not applicable.

11 Dupont Circle, N.W. Washington, D C. 20036 / Phone (202) 797-6400 / Telex 248329 / Cable Interpeace WashingtonDC

342

U.S. House of Representatives
Committee on Post Office and
Civil Service
Washington, D.C. 20515
Page Two

5. My indirect experience is confined to the
field of foreign policy, rather than covert
operations, intelligence, etc. I totally reject
any form of prepublication censorship as regards
writings on international affairs and foreign
policy.

6. Not really, largely because virtually all
classified information either enters the public
domain or becomes worthless after a relatively
short lapse of time. At least in the realm of
foreign policy any attempt to make this kind of
segregation would be folly.

As general comment, I totally reject the idea that
one set of public officials — ex-Secretaries of State,

Under Secretaries, national security advisers — can carry
away bales of classified material and use them on the
financially lucrative lecture circuit or to write best-
sellers, while others have to submit works for prepublication
review. I also reject the idea that because a matter
was once justifiably classified top secret , it remains
so after the heed for secrecy has passed. Finally, I
reject the idea that the executive branch should be the
final judge of whether pre-publication review should
apply to particular writings; this should be the function
of some independent board of knowledgeable ex-officials
and journalists.

On the reverse side, I would be much more severe
about the abstraction and removal of classified government
documents, especially cables, without authorization. This
practice can compromise our codes. I would prosecute
violators from the top down, not merely lower grade civil
servants .

Sincerely yours,

£AjSZ\ UojuJL^^

Charles Maechling, Jr.

Attachment- (list of articles)

343

CHARLES MAECHLING, JR.
PUBLICATIONS 1969-1984

A. Professional and Literary Journals

1984 Restoring the Alliance, EUROP E (March-April 1984)

1983 The Dehumanization of Human Rights, Foreign Policy (Fall,

1983),

1983 The Credit Collapse, Foreign Service Journal (April 1983).

1982 Siberian Pipe Dream, EUROPE ( September-Oc tober 1982).

1982 The Argentine Pariah, Foreign Policy (Winter 1981-1982).

1982 Emerging Mexico, Foreign Service Journal (January 1982).

1981 The Japanese Image of America, Trend s (December 1981).

1981 The Pakistan Miraqe* SAIS Review (Inaugural issue, March
1981).

1981 Oapan-The Brittle Alliance, Virginia Quart. Review (Winter
1981).

1981 The Future of Diplomacy and Diplomats, Foreign Service Journal
(Memorial issue, January 1981).

1980 The Long Arm of Anti-Trust, EUROP E (May-June 1980).

Improving the Intelligence System, Foreign Serivce Journal,
(June 1980). "

1979 Pearl Harbor, 1941-The First Energy War, Forei gn Service
Journal (August 1979)

1979 The Hollow Chamber of the I nternati onal . Court , Foreign Policy
(Winter 1979) ““ '

1978 The Intellectual in American Foreign Affairs, T rends

(September 1978); Foreign Service Journal (October 1978).

Prescription for Detente, Virqinia Quart. Review (Winter
1978).

1977 The Extra-Territorial Reach of U.S. Law, ABA Journal (February
1977 ) . _

344

Charles Maechling, Jr.
Publications, Page Two

Professional and Literary Journals cont’d

The Panama Canal - A Fresh Start, ORBIS (January 1977).

1976 Systems Analysis and the Law, Virginia Law Review (May 1976).

Foreign Policy Makers: The Weakest Link?, Virginia Quart.

R evi ew (Winter 1976) (reprinted Foreign Service Journal and
digested New Yo rk Times . )* ~

1975 Freedom of Scientific Research: Stepchild of the Oceans,
Virginia Journal o f International Law* (July 1975).

1973 The Sixtus Affair, History Today (November 1973).

1972 Science the Shrinking Ocean. Foreign Service Journal*

(June 1972).

1969 The Next Decade of American Foreign Policy, Virginia Quart.
Revi ew (Summer 1969).

Our Foreign Affairs Establishment, Virginia Quart. Review*
(Spring 1969).

The Right to Dissent, ABA Journal * (September 1972) (Ross
Essay Award).

Our Internal Defense Policy: Foreign Service Journal (January
1969).

Reprinted in whole or in part for inclusion in course materials,
casebooks and anthologies, including War College curricula.

B. Newspaper Articles (Op-Ed and Sunday Editorial Sections)

Jan .

20,

1984

Dec .

14,

1983

Nov.

17,

1983

Oct .

27,

1983

Haven't We Heard This Line Before?, Los Angeles
T imes **

West Germany's Kohl Is in Trouble, Los Angeles
Times **

'Intelligence' Simply Wasn't, Los Angeles Times **

Excuses for Grenada Move Are Flimsy, Los A ngeles
Times**

345

Charles Maechling, Jr.
Publications, Page Three

Newspaper Articles cont'd

Oct.

14, 1983

Sept.

14, 1983

June

10, 1983

May

3, 1983

Apri 1

15, 1983

Feb. .

13, 1983

Dec.

31, 1982

Dec.

17, 1982

Nov .

28, 1982

Oct.

24. 1932

Oct.

3, 1982

Sept.

1, 1982

Aug.

30, 1982

Aug.

8, 1982

July

22, 1982

Apri 1

25, 1982

Apri 1

9, 1982

March

18, 1982

Sept .

5, 1981

KAL Flight 7 - the legal aftermath, Chri st 1 an
Science Monitor

Reagan's Anti -Human Rights Policy, New York
T imes

Fighting Insurgency With No Real Strategy, Los
Angeles Times **

Spain: The Missing Link?, Miami Herald

Free Trade Really Isn't, Los Angeles Times **

Closer Coordination With Our Allies, New York Times

America's Nonrecognition Policy Is A Nonstarter,

New York Times

U.S. Has Time To Ratify Sea Treaty, Chi cago
Sun-Times

Latin American Red Ink, Los Angeles Times **

Piracy on Law of the Sea, L os Angeles Times **

Foreign Policy Made in Peoria, Los Angeles Times **

The Pipeline Quagmire, Christian Science Monitor

Making Sense of our Latin American Policy, Los
Angeles Times **

The Pipeline Embargo, New York Times

The Pipeline Sanctions, Baltimore Sun **

The Falklands, OAS and International Law, Mi ami
Herald

Britain Sails into a Rough Sea, Los Angeles Times **

The Murderous Mind of the Latin Military, Los
Angeles Times **

Mexico, Latin Pivot, New York Times

346

Charles Maechling, Jr.
Publications, Page Four

Newspaper Articles cont'd

Apri 1

1981

Private Interests Jeopardize Sea Treaty, Baltimore
Sun

March

15,

1981

Can U.S. Afford to Scuttle Sea Pact?, Norfolk
Virginian Pilot

Feb.

12,

1.981

Counter-I nsurqency-Wi th Controls, Washington Post**

Nov .

20,

1980

Schmidt on a Tightrope, Washington Post

Oct.

14,

1980

The Shatt al-Arab - At Stake in the War, Washington
Post**

Dec.

20,

1978

The China Claims Issue, Washington Post**

June

10,

1978

Africa: The Counter-Insurgency Dilemma, Washington
Post

Aug.

26,

1977

A High Price for a Canal Treaty, Washington Post

Aug.

1977

The Canal Treaty: Words of Caution, New York Times

March

25,

1976

Making Foreign Policy, New York Times

(also book reviews for Washington Post , F oreign Service Journal ,
Virginia Quarter l y Review , etc.)

* Reprinted in whole or in part for inclusion in course materials,
casebooks and anthologies, including War College curricula.

** Reprinted in International Herald Tribune

347

JOHN BARTLOW MARTIN

185 MAPLE AVENUE
HIGHLAND PARK, ILLINOIS 60035

2/9/84

Dear Mr. Edwards and Mrs .Schroeder ,

In response to your inquiry of January 25, I
wish to submit the following (the numbered responses
correspond to your numbered questions) :

1) Since leaving government service, I fe^ve
published three books relating in one way or another
to my government service. They are: 1) OVERTAKEN
BY EVENTS: The Dominican Crisis From The Fall of
Trujillo to the Civil War. (Doubleday, 1966.)

This was directly related to my government work,
since it was an account of my tenure as
Ambassador to the Dcuminicnn Republic. 2) THE
LIFE OF ADLAI E. STEVENSON. (Doublfeday. 2 vols.
1976, 1978.) The second volume, which includes
Mr .Stevenson 1 s service as our Ambassador to the
United Nations, was related to my government work
in that I drew on my own experiences to help me
understand his; furthermore, during my research
I was given access to the classified documents of
the State Department and the United States Mission
to the United Nations for the period of his tenjure
as Ambassador. 3) U.S. POLICY IN THE CARIBBEAN
(a Twentieth Century Fund study, pub. by Westview
Press, 1978.) While not directly related to my
government service, and while I did not have and
did not ask access to classified documentSs, this
book was informed and I believe benefited from my
experience in government. In addition, I have _
published numerous newspaper and magazine articles#
on Caribbean affairs and other foreign policy
issues; for none of this did I ask or have acdess
to classified documents .

2) I was U.S .Ambassador to the Dominican
Republic 1962-1964. I was President Kennedy's
special envoy there in 1961 after the fall of
Trujillo and President Johnson’s special envoy there
in 1965 during the Dominican civil war and our
intervention. Yes, I had access tc(classified
materials, including ya I believe, SCI (though it was
not called that at that time, so far as I know) .

SUMMER ADDRESS: BOX 71, L'ANSE, MICHIGAN 49946

348

JOHN BARTLOW MARTIN

185 MAPLE AVENUE
HIGHLAND PARK, ILLINOIS 60035

3) When I did all this writing, I had in my
possession no classified documentsa . In the case
of OVERTAKEN BY EVENTS and U . S . POLICY IN THE
CARIBBEAN, so far as I can recall, I saw no
classified documents while researching and writing
the books. In researching the STEVENSON biography,
as I said above, I did read a great number of
classified documents. In the case of magazine and
newspaper articles, I had no access to, and did not
ask for, classified documents,. Now as to
prepublication review: 1) While I was writing
OVERTAKEN BY EVENTS, an agent of the CIA called on
me, said the Agency understood I was writing a book
about the Dominican Republic, and asked if the
Agency could review it before publication. I said
of course. He said he would get back to me. But he
never did. One chapter in that book covered our
military intervention in 1965; it was based on my
mission there; I ssked two senior members of
President Johnson’s staff to review it before it
was published (first in LIFE then in my book) ;
they did and, so far as I can rdcall, requested no
changes. 2) While I was researching ADLAI STEVENSON,
I asked for access to classified documents
USUN-DOS and was granted access by the Undersecretary
of State and the Assistant Secretary for 10. (I
have the impression they cleared it with the
Secretary.) They did this on condition that I
submit the manuscript to them for review before
publication. I did submit it; they read it and
approved it; as I recall, they requested no
changes. (I submitted to them only the sections of
the b^iography relating to Stevenson’s tenure at
USUN; the great bulk of the book covered Stevenson’s
earlier life and his private life and were of no
relevance to the Undersecretary and Assistant
Secretary.) 4) As to the magazine and newspaper
articles, I submitted nothing nor was asked to,
except for the one chapter of OVERTAKEN BY EVEJjfS
published in LIFE and noted at (1) earlier in this
paragraph .

4) I have answered most of this question in
3) above. I can add that the prepublication review
of the STEVENSON material took only a few days and of
the chapter in OVERTAKEN BY EVENTS only hours.

SUMMER ADDRESS: BOX 71, L'ANSE, MICHIGAN 4 9946

349

JOHN BARTLOW MARTIN

185 MAPLE AVENUE
HIGHLAND PARK, ILLINOIS 60035

5) One way feb prevent disclosure of
classified information against our national
interest is to rely on the author's own
judgment. In my own writing, I tried to be
candid with the reader but I by no means
published everything I knew. Prepublication
review by a competent reviewer is an excellent
backstop for the author's judgment. But I
emphasize a competent reviewer. To hand off
this task to some low-level cautious faceless
bureaucrat makes me shudder. The reviewer must
be a senior officer, a person capable of
rendering judgment on what may be safely made
public and what may not. Were the process to
become heavily bureaucratized, it would not only
cause enormous delay but would result in withholding
from the reading public information ihe public needs
in order to understand subject being addressed.

A bureaucratic process also could be used to
unwarrantedly protect incompetent individuals in
government, to grind aXes , and to make the matter
in hand come out the way, in hindsight, the reviewer
wishes it had come out. The power of review, or
prepublication censorship, is awesome and should
be hedged around with safeguards for the public's righ-
to know. IIow you do this formally, by executive
directive or legislation, I must say I don't
know. It is this difficulty that makes me wonder
if prepublication review is wise at all.

6) I certainly see no reason for prepublication
review of portions of a manuscript that in no way
contain classified material. This is a waste of
time and an invitation to censorship having
nothing to do with national security. It tends
toward thought control. If, for example, an author
writing on a national security subject wishes to
draw conclusions that the censor doesn't like, he
has a right to.

Mjjy I add a general comment,. This is,
obviously, an extremely sensitive subject,
approaching the heart of fundamental liberties .
Certainly the government has a right, indeed an

°S?M$ii??! ADDRESS: BOX 71, L'ANSE, MICHIGAN 4 9946

33-307 0—84 12

350

JOHN BARTLOW MARTIN

185 MAPLE AVENUE
HIGHLAND PARK, ILLINOIS 60035
4

obligation, to protect its secrets if unveiling
those secrets would jeopardise national security.
Certainly, too, an author has a right to write
freely. And certainly, too, the public has a
right to know as nuch as possible about the conduct
of the country's business. 'The only tost here, it
see-os te is whether publication of certain

material would car age our national security.

This is, clearly, a natter of judgment,
bn trusting can sort-hip power to anybody nust be
carefully hedged about with safeguards. This does
net appear to be provided for in the Directive
you are addressing. Tor example, requiring, as
the Directive does, prepublication review of any
writing 'concerning intelligence activities, source,
or methods seems to me muen too brood and loose.

Go is the? requirement of review for any writings
that "cor. tai^r purport to contain H any cl assif ied

information- from that language it is

clear vr^th^-r wont is forbidden is verbatim
extracts fro??, a classified docu“ont or a paraphrase,
beyond this, in this whole matter vc run th^ risk
of depriving the public of the experience and
insight and wisdom of former government officials.

Who is to say that Fr.Acbeson or *'r .Kissinger

or President Truman or President biseuhower cannot

publish their memoirs? If they ca mot, ho\; arc we,
the public, to learn want happened? It is
inconceivable, that, when tnoy wrote their memoirs ,
they did net have in their Leads if not in their
hands classified information. Lad they been
prevented from publishing it, history would be much
the poorer. Finally, I have read a great many Looks
and articles on foreign policy, including nany written
by former government officials, hut I have never read
one that harmed the national security of tho United
States .

You may make any use of this letter that
you wish. I thank you for this opportunity.

Sincerely

SUMMER ADDRESS: BOX 71, L'ANSE, MICHIGAN 49946

351

THE UNIVERSITY OF MICHIGAN
GRADUATE SCHOOL OF BUSINESS ADMINISTRATION
ANN ARBOR, MICHIGAN 48109

Paul W. McCracken

Edmund Ezra Day University Professor

of Business Administration

Mr. Don Edwards, Chairman
Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
U.S, House of Representatives
122 Cannon House Office Building
Washington, D.C. 20515

Dear Mr. Edwards:

This is in response to your letter of January 18
requesting comments pertaining to National Security Decision
Directive 84. Perhaps the most straightforward way to respond
would be simply to comment on each of the six points you have
stipulated in the letter.

1. My recent writing generally has taken the form largely of news-
paper articles, papers and one book. The writing was not
specifically related to my experience in government, dealing
largely with economic developments and economic policy.

Obviously, however, a tour of duty in government inevitably
has an over -arching influence on the way one views some of
these subjects.

2. My experience in government included two tours of duty as a
member of the Council of Economic Advisers. The first was as
one of the three members, 1956 to 1959, At the beginning of
1969, I then returned to the Council of Economic Advisers to
serve for three years as its Chairman. In both cases, I had
access to classified information. I presume it would have

been within the ambit of the "sensitive compar tmented information"
concept, though I do not recall that term.

3. Since ray writing has never drawn specifically on sensitive and
classified information, I have had no reason to submit manuscripts
to a pertinent government agency before publication. I do not
recall any article or paper where the question could conceivably
have arisen that something in the publication represented sensitive
information.

January 31, 1984

352

Mr. Don Edwards Page 2 January 31, 1984

4. Not relevant.

5. Not relevant.

6. If this requirement is to be interpreted literally — that all
former government officials with access to SCI information must
submit all publications — I do not see how this is at all feasible.
Indeed if this literally were to be the requirement, I would
strongly advise anyone in academic life further to avoid government
service. I am wholly sympathetic with the need to protect sensitive
and classified matters, but there must be common sense involved here.
Each time I give a paper or write an article I do not want that to
be stalled by what would inevitably be the cumbersome viscosities of
government review. This would be particularly vexatious when for
all practical purposes none of the output would have any relevance
to classified information in any case.

It seems to me common sense must pr'y.ail here, with people requested
to clear their writing if there is any reason on their part to wonder
about the matter. Moreover, government would always have to have the right
after the fact to judge that a person had breached his fiduciary responsi-
bility by some writing if that seemed to have occurred. To requite that
all writing be subject to pre-publication review would be counter-
productive, nonsense, impossible operationally, and therefore would make
a caricature of what, properly defined, is an urgent and legitimate con-
cern of society.

Regards,

Paul W, McCracken

PWM:dj

353

NINETY-EIGHTH CONGRESS

V/y / / Wy// f

PATRICIA SCHROEOER, COLO . CHAIRWOMAN

UOddlJK UOAll A«l» CHARtlS BASHAVAN JH CALIF

B.,S. Itoube Df 'RcprEBtntatiSEB

COMMITTEE ON POST OFFICE AND CIVIL SERVICE
SUBCOMMITTEE ON CIVIL SERVICE

122 CANNON HOUSE OFFICE BUILDING

Mafiljington, 33.C. 20515

TELEPHONE |202| 22S-402S

February 8, 1984

Dear Mr. McNamara:

President Reagan, on March 11, 1983, issued National Security
Decision Directive 84 (copy enclosed) which seeks to reduce the
unauthorized disclosure of classified information. Among other
things, the Directive requires that employees with access to
certain types of restricted information sign non-disclosure
agreements containing a requirement that the employee submit for
prepublication review all writings "which contain or purport to
contain" any restricted or classified information or "any
information concerning intelligence activities, source, or
methods." This requirement applies for the rest of the employee's
lifetime .

The Subcommittee on Civil and Constitutional Rights of the
Committee on the Judiciary and the Subcommittee on Civil Service
of the Committee on Post Office and Civil Service held joint
hearinqs in April to explore the Directive and the need for it.
Our joint investigation into this matter continues.

Therefore, we request that you respond to the questions below.

Your answers will be valuable in the preparation of our report on
this issue.

1. Please indicate the type of publication (s ) in which your Jjf ^

writing has appeared since you first left government service —
i* « Knnire newspaper articles, or works of fiction — ■ and /jy - jn J

i.e., in hooks, newspaper articles, or works of fiction -
whether the writing was related to your former government
employment

T/~joh

2. What position (s) did you hold in the Federal government? For
what periods of time? Did you have access to classified
information in such position? Did you have access to sensitive
compartmented information (SCI) in such position?

3. What steps did you take to ensure that your publication (s ) >

contained no classified information? Did you submit your entire ' ,

publication for prepublication review or did you submit parts for T
review? If you submitted only a portion of your writing for Qj’iTlA

prepublication review, on what basis did you decide which portions
to submit?

354

February 8, 1984
Page 2

4, If you have submitted any writings for preDUblication review, ^

what was your experience? To whom did you submit your material?

Were you requested to delete material from your work? Were you
permitted to show that the material was not classified? How long
did it take to review the material?

5* Based on your experience with the prepublication review
process, do you believe that expanding its use is the most s

appropriate and effective means of preventing disclosure of
classified information?

6. The Directive requires all former government officials with
access to SCI information to submit all publications, including
speeches and lectures, for prepublication review. Do you believe
that requiring such officials to submit only those portions of
writings which might contain classified information would be
equally effective?

Vie are, of course, cognizant of the fact that this is a very
hectic time for everyone. However, your earliest assistance in
responding to this request will be most appreciated since the
Committees believe it is important to conclude their inquiry.

Please indicate in your response if you prefer that your comments
he kept confidential; otherwise, they will be made a part of our
public record. ^

Helen Gonzales of the Judiciary Committee staff (226-7680 ) and
Andrew Feinstein of the Post Office and Civil Service Committee »

staff ( 225-4025) are available to answer any questions you might
have about this request. A i

With kind regards,

Sincerely ,

Crow

DON EDWARDS
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary

PATRICIA SCHROEDF.R
Chairwoman

Subcommittee on Civil
Service

Committee on Post Office and
Civil Service

Enclosure

355

Sacred

Heart

University

Fairlietd. Connecticut

Mailing Address

Post Office Box 6460

Bridgeport . Connecticut 06606-0460

(203)371*7900

Office of the President

February 16, 1984

The Honorable Donald Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
U.S. House of Representatives
122 Cannon House Office Building
Washington, D.C. 20515

Dear Congressman Edwards,

Thank you for your letter of January 25, 1984. I am pleased to
cooperate with your inquiry.

The articles that I have written either .while serving as the
Assistant Secretary for Postsecondary Education or resulting from
my experiences in that position, are as follows:

The Future Federal Role Between Government and Higher Education ,
College and Research Libraries, March 1982, pp. 130-132.

Keeping Colleges Relevant and Solvent in Age of Austerity ,
Hartford Courant, July 31, 1982, p. A-17.

Defining A Worthwhile Liberal Education ,

Sunday Post, Bridgeport, August 3, 1982, p. B-3.

Restoring Values to Education ,

Sunday Post, Bridgeport, August 25, 1982, p. B-3.

The Issue : Relevance

The Sunday Post, Bridgeport, August 29, 1982.

Reflections On Going Back to College , Fairfield Citizen News ,
September 1, 1982, p. 18.

Campus Life is Enriched by Foreign Influx , New York Times ,
September 12, 1982.

Black Colleges and Universities in the ^Os,

The Washington Times, October 6, 1982, pp. 10-A.

356

Page 2

The Local University : Its Time Has Arrived
The Advocate, November 14, 1982.

Working Your Way

The Hour, January 11, 1983,

I served as the Assistant Secretary for Postsecondary Education
in 1981-1982 while on leave from my present position. I had
access to classified information, but did not make much use of it.

All my articles were submitted to the appropriate office for
review in order to assure that I was in conformity with all
the regulations and guidelines.

X felt that the above procedures assured that I did not depart
from any regulation and I found the appropriate office in the
U.S. Department of Education cooperative. It normally took around
a week for the material to be reviewed.

I believe that all citizens serving in Senior Government roles who
have benefited from the knowledge and information obtained in these
positions, should submit their proposed publications for review.

This includes, in ray opinion, articles written subsequent to their
departure from Government Service. By review I mean that there is an
obligation from all that have benefited from ’Government Service to
assure that we are not benefiting from information received in a
personal way and that we are not exposing classified information.

I hope that this Information is helpful. Please do not hesitate
to contact me If there are any further questions.

With best wishes, I am

TPM: ink

CG; Ms. Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service

Very sincerely yours,

" TV

Thomas Patrick Melady
President

357

GEORGETOWN UNIVERSITY

WASHINGTON. D.C. 20007

EDMUND A. WALBH
school OF foreign service

ASSOCIATE OEAM

February 15, 1984

The Honorable Patricia Schroeder
Chairwoman

Committee on Post Office and Civil Service
U.S. House of Representatives
122 Cannon House Office Building
Washington, D.C. 20515

Dear Congresswoman Schroeder:

I am responding to the questions in your letter of January
25 as follows:

1. Since I left government service in March of 1981 I have
had articles published in Foreign Policy magazine, the Middle
East Journal, the Arab-American Review, the New York Times, and
the Christian Science Monitor, In each case the writing covered
subjects which grew out of my experience in government service.

2. I was a member of the United States Foreign Service for

35 years. I was Ambassador to Libya, Indonesia and the Philippines,
Assistant Secretary for African Affairs and, finally, Under
Secretary for Political Affairs. I had access to classified
information in each position and access to sensitive compart-
mented information as Under Secretary of State.

3. The only manuscript which I submitted for review was an
as yet unpublished manuscript on the incident of the Soviet
brigade in Cuba. I submitted that for review for two reasons:

1) I had had access to the files of the Department specifically
to do research on this issue; and 2) the study concerned the use
of intelligence information. The other articles which I wrote
and which I continue to write were expressions of personal
view. Any information in those writings which might have been
considered classified I was careful to pick up only from
published material.

4. My experience with the one case of submitting writings
for prepublication review was a satisfactory one. I submitted it
to the Department of State which in turn referred it to the

358

The Honorable Patricia Schroeder
February 15, 1984
Page Two

Central Intelligence Agency and the National Security Agency. 1
was requested to delete certain material even though it was
already published in public sources. The reason given was that
since I had been an official with access to the information when
it was classified my use of it tended to confirm that it was
authentic. It took approximately three months to review the
material *

5. My experience with the prepublication review process was
reasonably satisfactory. My concern over the new directive would
be that the volume would increase to a point where the clearance
process would become longer and more complicated. I doubt that a
survey of the written material of former officials would demon-
strate a sufficient number of cases of inappropriate disclosures
of classified information to warrant the cost and inconvenience
and inhibition that would result from a prepublication review
process for all of the writing of all former officials with
access to classified information.

6. The directive requiring all former government officials
with access to SCI information to submit all publications
including speeches and lectures for prepublication review would,
in my view, prevent all such officials from having an effective
second career in education or in writing. I believe that the
most that would be appropriate and would be still fair to the
processes of education and information would be a requirement to
submit only those portions which contained classified information
Presumably this would not include classified information which
had otherwise leaked and which was picked up in the writings of
former officials. This is a point that would certainly need to
be clarified.

I have no objection to this response being made a part of
your public record.

Sincerely

David D. Newsom

UNITED STATES ARMS CONTROL AND DISARMAMENT AGENCY

Washington, DC 2CM51

February 17* 1084

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and Civil Service
U.S. House of Representatives
122 Cannon House Office Building
Washington, D.C. 20515

Dear Chairwoman Schroeder:

Jb.is is in reply to the letter dated January 18, 1984 which I
received from you and Congressman Don Edwards, Chairman of the Sub-
committee on Civil and Constitutional Rights of the Committee on
the Judiciary. That letter requested certain information from me
as a former government official" who has published articles or
books concerning the issues faced while serving our country.

As you probably know, I have been back in full-time government
service for over two years now as Chairman of the United States
Delegation to the Intermediate-Range Nuclear Forces negotiations.^
Under the circumstances, I feel it would be best it it was left to
others who are truly "former government officials" to respond to
the questions in your letter.

Sincerely,

Paul H. Nitze ^

360

DEPARTMENT OP THE NAVY

NAVAL POSTGRADUATE SCHOOL

MONTEREV. CALIFORNIA 93943 Kf Ply RtFf R TO

February 16, 1984

Rep. Don Edwards, Chairman

Subcommitte on Civil & Constitutional Rights

Committee on the Judiciary

Rep. Patricia Schroeder. Chairwoman
Subcommittee on Civil Service
Committee on Post Office & Civil Service

II. S. House of Representatives
122 Cannon Office Building
Washington, D.C. 20515

Dear Representatives Edwards and Schroeder:

I am writing in response to your letter of January 31st, requesting my
views of NSDD 84.

Before responding to each of your numbered questions, I should point out
that my situation is somewhat unusual. I left full-time civil service status
with the Department of State for six month, then returned to a Department of
Defense excepted service full-time teaching/research position. In the latter I
am required to engage in academic research and publication which is covered by

the provisions of regional accrediting and AAUP standards. In doing so,

however,. I am scrupulous about never using nor implying evidence from
classified sources and always inserting a disclaimer that the views I express
are solely my own. Against that background, these are my responses:

1) I write academic articles, newspaper OP-ED pieces, and non-fiction books
and book chapters.

2) I was an intelligence analyst (Foreign Service Reserve) for Japan/Korea,
U.S. Department of State, Bureau of Intelligence and Research, Office of East
Asian and Pacific Affairs, 1975-1980. Cleared for Top Secret & SCI. Presently
in an academic position with the government.

3) I never use or suggest the use of classified materials. Because of that and

my consistent attempt to insert a standard disclaimer (n.ot always done by

editors), I have not submitted manuscripts to pre-publication review.

4) Not applicable to me, but present and former colleagues have told me of
capricious treatment and deletions which seemed to have nothing to do with
security considerations.

5) Other than in instances where the topic concerns intelligence methods or
draws on ones classified work experiences (as contrasted with bureaucratic
experiences), I am opposed to excessive post-employment regulations. If
employees can be trusted to protect the national interest while employed, they
should also be trusted afterward, punishment for those who violate this trust
should be sufficient to deter other potential ex-governmental leakers.

361

6) I heartily concur with that modification if there has to be any pre-
publication review procedure for former employees, but I prefer to trust
former officials until they prove they do not deserve that trust.

I hope these responses will be of some use. Thank you for your interest
in my views.

Associate Professor of
National Security Affairs &
Coordinator of Asian Studies

362

UNIVERSITY OF MARYLAND
School of Public Affairs
College Park, Maryland
20742

Suiu 1218 January 27, 1984

Ltfral Halt
(301) 454-6193

Honorable Don Edwards and Patricia Schroeder
Chai rpeop le

Subcommittee on Civil and Constitutional Rights
and on Civil Service
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Congressman Edwards and Congresswoman Schroeder:

I have received your letter of January 18, 1984, requesting
comments on President Reagan's National Security Decision
Directive 84. I commend you for opening for national debate the
many issues involved in that directive and only regret that I
cannot respond to those issues in as full a manner at this time
as I would like or that they deserve.

Let me first respond to the specific questions in your
letter, and then make a few general comments. Of course, I would
be happy to respond to any additional questions as your inquiry
proceeds •

Answers to Questions:

1. Since leaving office on January 20, 1981, I have written

quite extensively on U.S. policy toward Latin America and the
Caribbean, on immigration and refugee policy, on trade and
economic development. (I enclose a list of my published articles
since January 1981.) Almost all of the issues I have addressed
since leaving office, I also addressed while in government. And
needless to say, one of the reasons I was appointed to the
National Security Council was because I had done considerable
work on these issues before Joining the government.

2. I was the Senior Staff Member in charge of Latin American and
Caribbean Affairs on the National Security Council from 1977-

81. In that position, I had access to the most sensitive
plaBBified information.

3. I intend to submit parts of the book I am writing on U.S.
policy toward the Nicaraguan revolution to pre-publication review
by the National Security Council because I expect to use
documents which are classified. Other than that, I have not seen
any reason to submit any of my other writings to pre-publication

363

review, and I do not believe that anything I have written could
in any way be considered prejudicial to our national security.

On the contrary, it is in part due to my concern for the nation's
security that I have written many of the articles. But the short
answer to .the question of what steps I took is that I have relied
on my personal judgment, and no one in the Administration or
outside, to the best of my knowledge, has suggested that anything
X have written has either compromised or harmed our nation's
security in any way.

4. —

5. —

6. Rather than require the submission of all writings and
speeches of former government officials for pre-publication
review, it would be at least as effective and certainly more
appropriate to only require the Submission of those portions of a
person's writings which contain classified information. The
blanket requirement of pre-publication review by all former
government officials of all their writings would not only he an
infringement on their rights, but more importantly, it would
reduce the capacity of our nation to intelligently debate
important national security issues.

Our national security requires that people of expertise,
experience, and good Judgment work on national security issues in
government and debate them when they are outside of government.

To require the submission of op-ed articles, to take just one
example, for pre-publication review ia to virtually preclude
their publication because they need to be timely if they are to
be published and contribute to the national debate. The blanket
pre-publication requirement is Bimply a gag order, I have no
doubt that moBt Incumbent administrations would like to have such
power over those who have served previous administrations,
particularly of different parties, but in the broadest sense, our
national security would be jeopardized by such an order.

Every Administration has sought to control unauthorized
leaks, meaning leaks which either do not come from the very top
of the ship of state or leaks which tend to embarrass the
Administration. Most unauthorized disclosure of information is
embarrassing to Administrations; occas s ionally , it harms our
nation's security. I can recall a newspaper report in early
1977, which alleged that a number of important foreign leaders
had received payments from the C.X.A. at earlier points in their
careers, and this report had a devastating, adverse impact on our
capacity to pursue effective policies abroad. But this newspaper
report had no obvious source; it certainly was not derived from
an article or book by any former government official. Another
recent, similar case was an allegation in a book by Seymour Hersh
on Henry Kissinger which alleged that several named foreign
leaders had received payments from the C.I.A. Again I have no
doubt that this hurt our nation's relationships abroad, but

264

again, this wasn't disclosed by Kissinger or by any former
government official, but rather by a newspape rpe re on •

A second related problem Is that virtually every issue in
the national debate is addressed in memoranda or intelligence,
which is classified. Put another way, there is very little
classified material, which does not emerge at one point or
another in the public domain, generally in a distorted way, but
sometimes accurately. Should former government officials not
publicly address these national issues? Who is to judge what is
classified in a national debate, and what isn't? Time and
Newsweek are filled each week with classfied information. Should
a former President or Secretary of State clear his comments on
such articles with some pre-publication review panel before going
on the Today show? What if an unanticipated question gets
asked? Should a former President Bay he has not yet been cleared
to handle it?

And who is to judge? To a considerable extent, the debate
on U.S. foreign policy within the U.S. pivots around differing
conceptions of what constitutes our national security, the
nature and intensity of the threat to U.S. interests, and the
most effective strategy for pursuing U.S. interests. By
definition, critics differ with an Administration's conception of
these three factors. Is it appropriate, then, that
Administrations should sit in judgment on its critics?

And there is the problem of definition of what constitutes a
breach of our national security. There are several levels and
kinds. First, and most important, are the protection of our
sources and methods of gathering intelligence. By and large, the
most damaging breaches — such as regarding our satellite
capabilities — have come from people employed by defense
contractors and through Soviet spying activities rather than from
indiscretions from current or former Washington officials.

At a second level are those disclosures which embarrass
world leaders — both friendly and perhaps not so friendly.

These disclosures do certainly affect our relationships since
these are built on confidence and violations of that confidence
must necessarily affect behavior. I can recall, for example,
that a memorandum of conversation between myself and a Foreign
Minister from a Caribbean country was leaked to the press to the
great embarrassment of both of us, and as one would expect, he
did not share his most closely held views with me again, despite
the fact that I apologized, and he knew that I was not
responsible for the leak. These unauthorized disclosures are
serious, but relatively un-studied by both scholars and policy-
makers .

A third kind of unauthorized disclosure is the moBt typical
one In Washington — it is designed to tilt the public perception
of an Administration policy. An official fearful that the
Administration is moving in a dangerous direction, but uncertain

365

precisely what that la, will leak a document or speak to a
reporter, who will speak to people on different sides of the
isaue, and write an article which makes the Administration —
whatever Administration — look either dangerous, ridiculous,
vacillating or Just uninformed. These are the leaks which
preoccupy Administrations most.

These breaches of either confidence or security generally
are premised on anonyaity -- on newspaper sources, or
"Administration sources," rather than on the governments sources
or on articles or books by named, former government officials.

In this final category of articles by former government officials
which 1 8 the primary target of the President's Directive, it
might be quite difficult to reach a consensus on what constitutes
a breach of national security. It might be a worthwhile exercise
to see whether all the members of the committee could identify
and agree to five separate instances of disclosures by former
government officials which harmed our national security. I
suspect it wouldn't be easy, but it is certainly important, and a
key first step toward addressing the kinds of problems embedded
in the President's National Security Decision Directive.

What should the former government official who remains
dedicated to contributing to public policy do when he leaves
office? Should he remain silent for the rest of his life on his
area of expertise? Our nation already Buffers from almost a
chronically ahistorical approach to international relations. Do
we really want to reduce our historical memory even shorter? If
an important but classified issue has been totally distorted by a
leak to the press, and the distorted interpretation is shaping
the national debate, what is the responsibility of the government
or former government official?

There are many other important Issues raised by the National
Security Directive which attempts to reduce a genuine dilemma —
between our nation's imperative of free speech and our national
security — into a rather simplistic formula, which defends
national security by denying free speech, which, in short,
defends our nation while forgetting why it is worth defending.

I have no objections to this letter being published by your
Commi 1 1 ee .

366

Publications from January 1981 to Present

Chapters In Books

“Far From Hopeless: An Economic Program for a Post-War Central
America," with Richard E. Feinberg, in Robert Leiken ( ed . ) , Central
America: Anatomy of Conflict (N.Y.: Pergamon Press, 1984). .

"Puerto Rico as an International Issue: A Motive for Movement?" in
Richard Bloomfield (ed.), Puerto Rico: The Need for a National
Policy , Boulder, Colo.: Westview Press, forthcoming.

"Caribbean Emigration and U.S. Immigration Policy:^ Cross Currents,"
in Jorge Heine and Leslie Kanigat ( e d s • ) , International Relations of
the Contemporary Caribbean, forthcoming. Also published as IT Working
Paper by the Caribbean Institute and Study Center for Latin America
(CISCLA), In t e r- Arne r ica n University of Puerto Rico, San German, Puerto
Rico, January 1984.

"The Cry and Sigh Syndrome: Congress and U.S. Trade Policy," in Allen
Schick (ed.), Making Economic Policy in Congress Washington, D.C.:
American Enterpri se lnstltute for PuFl 1 c Pol i cy — Re s earch , 1983 .

"A Question of U. S. National Interests In Central America," in Wolf
Grabendorff, H.W. Krumwlede, and Jorg Todt ( e d s . ) , Change in Central
America: Internal and External Dimensions , Boulderl Colo.: Westview

Press , 1 983 .

"Migration in the Caribbean Basin: The Need for an Approach as
Dynamic as the Phenomenon," in M. M. Kritz (ed.), U.S. Immi grat 1 on and
Refugee Policy: Global and Domestic Issues, Lexi ngton , Mass, : DT Cl
Heath, 1983.

"Cuba and the Soviet Union: Does Cuba Act Alone?" in Barry B. Levine
(ed.), The New Cuban Presence in the Caribbean , Boulder, Colo.:
Westview press , 1983 .

-"U.S, Policies Toward \ -\e Caribbean: Recurring Problems and
Promises," in Jack W. Hopkins (ed.), Latin American and Caribbean
Contemporary Record, Volume 1 , 1981-82 , N . VTi Holmes and Meier, 19B3.

Selected Articles

"The International Debate on Puerto Rico: The Costs of Being an
Agenda-Taker," International Organization , Summer 1984, Vol . 38, No.

3, forthcoming.

"U.S. Immigration Policy and Latin America: In Search of the 'Special
Relationship, 1 " Latin American Research Review , Fall, 1984, Vol. 19,
No. 3, forthcoming.

367

"Latin America and the Marshall Plan Reflex," with Richard E.
Felnberg, Vital Issues , Washington, Connecticut: Center for
Information on America, forthcoming, 1984.

"Continuity and Change in U.S. Foreign Policy: Carter and Reagan on
El Salvador," Journal of Policy Analyses and Management , Vol . 3,

No. 1, Winter 1984.

"Spheres of Influence: Seal Them or Peel Them?," SAIS Review {The
Johns Hopkins University), Winter, 1984, Vol. 4, No. 1 .

"The Socialist International and the United States in Central
America: Mirror Images," The New Republic , May 16, 1983,

"Sinking in the Caribbean Basin." Foreign Affairs , Vol. 60, No. 5,
Summer, 1982.

"The Target and the Source: U.S. Policy Toward El Salvador and
Nicaragua," Washington Quarterly , Vol. 5, No. 3, Summer, 1982.

"Our Real National Interests in Central America," The Atlantic
Mont hi y , cover story, Vol. 250, No. 1, July, 1982.

"Reagan Diplomacy in the Caribbean: Proceedings of Trans Africa
Forum," Trans Africa Forum, Vcl . 1, No. 2, Fall 1982 , an interview:
27-58.

"Winning Through Negotiation: Congress Has the Seed of a Better Idea
for El Salvador." The New Republic , March 17, 1982,

"Ratifying Tlatelolco," Journal of the Federation of American
Scientists , Vol. 34," No .“8 , Oc to ber , “T9FT7

"Remembering Omar Torrijos: Ode to Omar," The New Republic , August
15, 1981.

"Three Perspectives on El Salvador," SAIS Review 2 {The Johns Hopkins
University), Summer, 1981.

"Comments" on 'U.S. Security and Latin America' by Jeane Kirkpatrick,
Commentary , April, 1981.

Op-Ed Newspaper Editorials

"Grenada: Outrage Follows Outrage," Washington Post , October 26,

1 983 .

"A Mission for the Kissinger Panel," Viewpoint Section of Miami
Herald , Sunday, July 24, 1983.

368

"An Eight-Point Peace Plan for Central America," Washington Post , July
5, '198 3. '

"Hypocrisy in World Trade: We Talk Protectionist, But We Don't M
It - Fortunately Los Angeles Times, Hay 17, 1983.

"Harassing Latin Intellectuals," Christian Science Monitor, K
1 983.

"Central America's Real Peril," New York Times, March 17, 1

"How Not To Lose Central America: Panama Canal Experience
Valuable Lessons for the U.S.," Los An gel es Times , August b

"Let's Make Deficits A Federal Crime," The Washington Post , August o,
1982 . ~

"Reagan's Two Caribbean Visions," Viewpoint Section of Miami Herald ,
Sunday, February 28, 1982.

"U.S. Needs a Better Caribbean Policy," Newsday , February 18, 1982.

"What to do about Cuba?" Viewpoint Section of Miami Herald , Sunday,
December 27, 1981.

"For a Caribbean Compact," The New York T i mes , December 23, 1981.

"Reagan Strategy Aids El Salvador Leftists," Los Angeles Times,
November 33, 1981.

"A Time to Act on El' Salvador," Washington Post, Sunday, October 11,
1981.

"The Right Way Out on El Salvador," The Miami Herald, Sunday, March
22, 1981.

"Jamaican Freedom Requires More Aid," The Washington Star, January 28,
1981.

369

la w offices

, Lane and Edsont, p. c.

SUITE AOO SOUTH I BOO H STREET, N. W.

V/ASHJNGTON, D. C. 20036
CABLE: LIBRA TELEX! 64A4B

telecopier: (202) * 57 -oosi

(202) -457“GBOO

writer's direct dial number

202/457-6899

January 24, 1984

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service

122 Cannon House Office Bldg.

Washington, D.C. 20515

Dear Madam:

This is in response to your letter of January 18, 1984, asking
me to respond to questions concerning National Security Decision
Directive 84. The numbered paragraphs correspond to your questions.

1. I wrote a non-fiction book entitled "Labyrinth" which was pub-
lished in hard cover form by Viking Press in 1982, and which was
published in soft cover form by Penguin Press in 1983. This is
the only publication that I have written since X left government
service, but the book was both written about and reviewed extensive-
ly. The book concerned a political assassination case which I han-
dled while I was an Assistant United States Attorney for the District
of Columbia — I was the chief prosecutor in the investigation and
prosecution of the assassins of former Chilean Ambassador Orlando
Letelier.

2. Assistant United States Attorney for the District of Columbia
for the period 1972 to 1979. I had access to classified and SCI
information from 1976 to 1979.

3. I submitted portions of my manuscript to the Central Intelli-
gence Agency from which I had obtained the relevant clearances.

I determined which portions should be submitted to the Agency. My
determination was based upon my knowledge that only certain chapters
of what I had written had the potential for containing classified
information. My view was that the government was not entitled to
read pre-publication anything I had written unless there was a po-
tential that it contained classified information.

J.GOOOWIN BENNETT
JOEL r. BONOCR
JEFFREY S.OISTENFELD
NICK. A EGELANIAN
MATT E. EGGER *
PAULA J.GALLEANO
JAMES C. GOULD
S. BRUCE JAFFE
MARTIN J. JARON, JR.
GARY L, LOZOFF
STEPHEN B. LYONS
OWIGHT O. MEIER
DENNIS K. MOYER
HOWARO J ROSENSTOCK
JOHNSON A. SALISSURT
Barbara sarshik
ARTHUR P. SCIBELU. JR
IRA H. SHARP
JOSEPH L. SHERMAN
GWENDOLYN R. SIMMONS
HERBERT F. STEVENS
DAVID W. STROH
INEZ K.TREMAIN
LINDA K.TWIFORO
ALAN P VOLLMANN
THOMAS E. WEIL. JR.
JUSTINE E. WILCOX
DEBRA O.YOGOOZINSKl

•hot Arwimo in o.c

BRUCE S- LANE
CHARLES LCDSOH
COWARD C. BERKOWPTZ
HERBERT H. FRANKLIN
DAVID FALK
FRANK H. PEARL
ARTHUR R.HESSEL
JOHN H. BETZ
ALAN G. ROSENBERG
JEFFRY R. DWYER
HARRY K. SCHWARTZ
FREDERIC J.TRU5LOW
KENNETH G, NANCE, JR.
MARTIN KLEPPER
. BARRY R.SCHENOF
— -^eUgeNc M. PROPPER
* JACK M.FEDER
DANIEL C. SMITH
BONNIE S. TEMPLE
FRANK H.HENNCOURG

3V0

The Honorable Patricia Schroeder
January 24, 1984
Page Two

4. My experience with pre-publication review was excellent. I
submitted the material to an Assistant General Counsel of the Central
Intelligence Agency, who was knowledgeable about the Letelier investi-
gation, and he reviewed it with assistance from an Agency employee

in the Operations Division. I did not use the pre-publication re-
view staff. The book is 623 pages long and the Agency asked that
we delete or amend, to the best of my recollection, about 10 words.

We saw no reason to challenge or refuse their requests because they
did not change the substance of anything we had written. I do not
recall how long it took to review the material; it was not immediate
but it did not delay us in any material fashion. My review was
probably somewhat easier because I had had a good working relation-
ship with this Assistant General Counsel.

5. The pre-publication review process is useful if someone is
publishing a book or other major article. I do not believe it would
be particularly useful in otherwise preventing disclosure of classi-
fied information. If a person intends to submit a book for review,
he will most likely comply with the decisions of those reviewing
the book. Persons who intend to divulge classified information
will likely do so in a fashion that will avoid the pre-publication
review, such as simply passing it on to a newspaper reporter, thus
shielding their identity.

6. I presume that your statement, that the Director requires all
former government officials with access to SCI information to submit
all publications for pre-publication review, only pertains to former
government officials who have signed a pre-publication review agree-
ment. Otherwise, it is probably unconstitutional under the First
Amendment. That aside, I think the suggestion that only those por-
tions which may contain classified information be submitted, would
be equally effective to submitting the entire speech or lecture.

Both proposals are faulty, however, because it is unlikely that
classified SCI information will be divulged in a formal speech or

a lecture. As a result of this law, it is now more likely that
it will be divulged in a manner where the divulger's identity is
not ascertainable,

I hope these are helpful.

Sincerely,

Eugene^ .

iMP/dlh

371

George E. Reedy

Niemart Professor of Journalism

Milwaukee, VVf 53233
414*224*7132

January 23, 1984

Dear Hr. Edwards and Ms. Schroeder:

I have very little sympathy with the President’s directive which strikes

me as merely another example of the obsession with "leaks" that has characterized

the occupants of the White House since World War II came to a close. In

my judgment, based upon years of experience as both a Washington journalist

and an official of two government branches, it will have little or no effect

in preventing disclosures of classified information. It may prevent a few

former employes from publishing books and articles on their experiences

and it may add a new category of government bureaucrats — the official reviewers

for such articles. But that will not put a stop to the flow of information —

only to certain types of publication.

The directive is difficult to apply to my set of circumstances which are
somewhat unique. Nevertheless, I will answer your questions to the best
of my ability:

1. Since leaving government service, I have published four books, two pamphlets
and innumerable articles in such publications as The New York Times, the
Washington Post, the Los Angeles Times, Newsday, the Annals of the American
Academy of Political and Social Science, the Journal of the American Political
Science Association, the Journal of the Southern Political Science Association
and other scholarly journals. With the exception of one book on the Selective
Service System, all of my writing has consisted of commentary on political,
governmental or communications themes and all of them drew heavily upon

my experience both as a journalist and a government official.

2. My positions in the Federal government included: Staff Consultant for
the Preparedness Subcommittee of the Senate Armed Services Committee, 1951—

1952; Staff Director of the Senate Democratic Policy Committee, 1953-1960;
Special Assistant to the Vice President of the United States, 1961-1963;

Press Secretary to the President of the United States, 1964-1965; Special
Assistant to the President of the United States in 1965-1966 and again in
1968. I have also served on presidential commissions studying selective
service and oceanography and on presidential boards mediating labor disputes.

In all of these positions, I had access to whatever classified material

was essential to my duties (I believe I had a Top Secret and a Q clearance
during the Preparedness Subcommittee days) but the formal clearances were
somewhat irrelevant. In terms of practical procedures, I had access to
any information to which Lyndon B. Johnson, my superior, had access, both
as a Senator and as President.

372

Classification — 2

3. None of my publications contained any information which by any stretch
of the imagination could be considered classified. I did not submit any
of my publications to anyone for review other than the appropriate editors.

I am not an historian and my interests are basically in the fields of political
and communications theory and in governmental structure where classified
information is irrelevant. Furthermore, I am not quite certain of the
appropriate office for submission of material by a former White House Assistant
when the President is no longer in office.

4. This is answered in the preceding paragraph.

5. I cannot base an answer on the prepublication review process but I can
respond on the basis of practical Washington experience. I repeat that
there is nu effective method of preventing leakage of material. The nature
of the Washington community is such that nothing other than intentions or
immediate military plans can be kept secret and then only if the person
having the intentions or the plans discloses them to no one else. It is
possible to prevent former employes from publishing which only means that
the information will appear in other forms beyond the reach of any law that
can be enacted under the Constitution. To stop leaks in an effective manner
would require the repeal of the first 10 amendments to the Constitution

and the scrapping of the procedures established by the common law.

6. Obviously, it would be much more reasonable to restrict the requirement
to information that might contain classified Information. In its present
form the directive seems to me to be totally unreasonable and I wonder how
it would stand up under a test.

Nay I add one thought of my own? It seems to me that this is a time for
a review of the whole subject of classification procedures. It is entirely
possible that modern technology plus modern methods of record keeping and
modern management procedures have made the whole concept of governmental
secrecy obsolete. If so, the answers to all the questions that are raised
by the President's directive and posed in your letter to me are quite obvious.
It is probable that information "leaks" pose no threats to the national
security that do not exist already and that efforts to plug those leaks
may have no impact other than chilling free discussion.

Sincerely,

Patricia Schroeder

Chairwoman, Subcommittee on Civil Service
Don Edwards

Chairman, Subcommittee on Civil and Constitutional Rights
c/o Committee on Post Office and Civil Service
122 Cannon House Office Building
Washington, D.C. „20515

373

George E. Reedy

Nieman Professor of Journalism

Milwaukee. Wl 53233
414-224-7132

January 24,19%

Dear Mr. Edwards and Ms Schroeder:

My letter to you of January 22 was written under the conditions
of stress that always characterize the opening weeks of a school
term. Upon rereading it, I realize that I was not fully responsive
in my treatment of Question j~6. U'ith your permission, I would like
to supplement my reply.

V'hat you asked was whether it would be equally effective, in terms
of safeguarding classified information, to require the submission
for review of only those portions of a publication which might contain
classified information as opposed to the entire publication. My
response is that I do not believe it makes any difference. I doubt
whether either route will erect effective safeguards against leaks.
Both are equally ineffective.

The requirement that publications be submitted in their entirety,
however, does raise in a heightened form the issue of pre-publication
censorship --the most sensitive ar.ea of the free speech issue. It is
well established in our society (although there are dissenters) that
certain types of publication invite legal retaliation — notably in
such areas as libel, slander, and pornography whenever the latter can
be defined. But in most of these instances (again, with certain possi-
ble exceptions in the field of commercial publication) the retaliation
follows upon publication. The popular phrase in American journalism
is 11 publish and be damned.”

Obviously the Presidents directive does not raise the sane type
of pre -public at ion censorship which led to the Rilkes case or against
which Milton inveighed in Aeropagitica, The government eviployee who
accepts a position waives full publication rights as a condition of
employment. The submission for review has been agreed upon in advance
and , however much X may question the necessity or the w is don of such
agreement, it would not trouble me too greatly if it could be con-
fined to that sector. Unfortunately, I cannot avoid a feeling of
considerable dubiety over the prospects of confining the procedures
to the employer -employee relationship.

374

Classification B — 2

The rationale for this whole exercise is that the disclosure of
certain types of information by former Government officials and
employes would do injury to the United States. If that injury is
sufficiently serious to outweigh the rights of those people to free
speech, why is it not sufficiently serious to outweigh the rights of
journalists or other writers to disclose the same information? That
question is bound to be raised sooner or later and J am afraid the
answer is foreordained. As long as the type of information is only
that which was classified under reasonable procedures, it might be
possible to draw some kind of a line and hold it. But even that is
a tenuous possibility and once the submission requirements extend to
all information, then there is no logical ground upon which a stand
can be made. I wonder whether the Constitution could withstand such
an assault.

It seems clear to me that a very dangerous path is being opened
for reasons that are inadequate. Furthermore , ..it also seems to me that
the order can create something of an administrative nightmare. Will
Presidents be required, after retirement, to submit their memoirs to
security review? Was Kr. Kissinger’s latest book submitted and, if so,
to whom? How about the large number of people on the National Security
Council Staff and the various "think tanks" of the Pentagon who quite
often retire to the Groves of Academe? Hust they submit their pub-
lications to the people who have succeeded them in their jobs? As an
academic, I publish somewhere between 30 and ij.0 lectures, scholarly
papers and articles a year. As I never signed an agreement, the order
does not apply to me. But the numbers I am citing are par for the
academic world where publishing is a way of life. Must those articles
and papers be reviewed? And how will the government handle the situa-
tion at symposia where there are no advance texts and participants
speak ad lib? -

Even though I am skeptical of the efficacy of any classification
procedure, the point at stake here is not whether disclosure of
classified information can harm the United States. But I submit that
the question of disclosure should be considered in a relevant context.
It is whether the disclosure of the information can harm the United
States more than the procedures which are established to prevent the
disclosure. liy response to that question is that potentially there
is more harm in requiring ex-government officials and employes to
submit their publications in entirety than there would be in any
information that could be disclosed. There is a. price to secrecy —
even in those arras where it can be justified beyond a doubt. I hope
someone starts looking at the price.

Sincerely

Patricia Schroeder, Chairwoman
Subcommittee on Civil Service
Don Edwards, Chairman

Subcommittee on Civil and Constitutional Rights
c/o Committee on Post Office and Civil Servicd
122 Cannon House Office Building
Washington, D. C . 205l5

375

Government Censorship — An Update
by Richard C. Rhodes
April 2, 1984

In my statement of February 22, 1984, prepared for the Senate
Judiciary subcommittee chaired by Senator Mathias, I noted on
page 4 that there was more than a double standard concerning
censorship by the government. I gave examples of how the
publication of the identical "classified" information could
possibly be handled with at least four different outcomes.

Additional information has come to light which I would like to
share with you.

Mr. David Wise, co-author of a book about the CIA called "The
Invisible Government," is credited by some with knowing more
about the CIA than many who work in its bowels. He is a
journalist, and having never worked for CIA, he is not under an
obligation to submit his writings to CIA for prepublication
review. His recent novel, "The Children’s Game" published by St.
Martin's/Marek, contains many passages about intelligence
technology and tradecraft.

Based on my own experience with CIA reviewing my novel, "Serpent
on the Hill," by Philip Eliot (pseudonym), and a careful reading
of available articles and court cases on prepublication review, I
suggest that the following matters would have been censored by
CIA if I, or any other former employee, had written them. Even
in a fictional context. I do not make any suggestion or inference
that the information is factual, only that it probably would have
been censored.

Re "The Children's Game" by David Wise, a novel:

On page 14 there is a reference to CIA experimenting with LSD.

Page 21: The Farm at Camp Peary Virginia is mentioned, along with
a description of the type of clandestine training that takes
place there.

Page 34: a reference to "KUBARK, the cryptonym for the agency."

Page 48: a discussion of how typewriter motors give off
electrical impulses that can be monitored by hostile services to
deduce what is being typed.

Page 51: discussion of how Soviets were circling CIA HQ with
disguised ELINT trucks, picking up signals from typewriters, code
machines, telephones...

376

(Rhodes -Censorship)

Page 80: a discussion of how CIA clandestine employees could give
out a phone number at the Pentagon (for cover purposes) that
would actually ring at CIA HQ.

Pages 105 and 106: a discussion of "silent bullets."

Pages 150 and 151: a discussion of intelligence satellites.

Page 156: a discussion of the chief of the CIA Technical Div.,
one Dr. Louis Weinberg, and some of the nefarious activities he
conducted with "drugs, poisons and biological weapons." This is a
very transparent reference to Dr. Sidney Gottlieb, for whom I
worked at CIA. Although I had no personal knowledge that Dr. "G"
was engaged in drug research et al, it is so alleged in "The
Search for the 'Manchurian Candidate* "(The CIA and Mind Control)
by John Marks. Had I written this page (156) in a novel, my
wrists would still be bleeding from the nail holes.

Page 205: a discussion of "Covert Procurement," whose job it was
to buy things with no attribution to CIA.

Page 224: a discussion of a lock-decoding device.

Again, I want to stress that I am not saying that I know the
above examples to be factual; only that even if they were untrue,
the CIA would have censored them as giving apparent "legitimacy"
to them if written by a former employee.

There are about 50 other references in "The Children's Game,"
that in my opinion would have either been censor'd by CIA or
pressures would have been brought to bear on the author to
delete them,had he been a former employee.

The second area of hypocricy and double standard I want to disuss
is the uneven application of review for novels written by former
CIA employees.

In the May 27 , 1983 issue of "Publishers Weekly," Mr. Charles E.
Wilson of the CIA prepublication review board is quoted as saying
that "Mr. Hunt (E. Howard Hunt) has been fairly faithful" in
making submissions of his books to the Board."

In the "New Yorker" for January 31, 1983, William F. Buckley, Jr.
says (p.76) "...but after about Book No. 25 Howard (Hunt)

received a note from (CIA) headquarters-something on the order
of 'Howard, you write books faster than our staff can review
them, so let's put you on your honor... we'll let you publish
your books unreviewed by us, trusting you not to reveal any
information that might hurt the United States.' "

377

Here was a man (Hunt) who was involved in one of the poorest
exercises of judgement in U.S. history, one that led to the
downfall of a U.S. President- and he is only "fairly faithful" in
submitting his books, or according to Buckley, CIA put him on his
honor! I am outraged, incensed, nearly apoplectic at this hideous
injustice to all former agents who write fiction and must play by
the rules.

In the same "New Yorker" article, { p . ) 77 Buckley tells us of a
conversation he had with Frank Snepp. Snepp asked how it was that
Buckley , a former CIA employee, could write novels about CIA and
not submit them and he, Snepp, could not. Buckley replied that
his stories were imagined, while Snepp wrote of factual matters.

Wonderful! Except there is no such distinction in the CIA

regulations as Mr. Buckely has invented. He does not have to

submit his novels because he is William Buckley. I am outraged,
incensed and nearly apoplectic. Or did I already say that?

The foregoing should add fuel to my already posited argument that
all who write about intelligence matters should be judged by the
same standard.

Since there is no short-term probability that such will come to
pass, I urge all who read this to join me in seeking to have the

lifetime censorship of CIA and NSA employees reduced to a period

of 12 years (or less) after they leave the government.

In the long term, the inequities, the jumbled reasoning and the
hypocricy that surrounds government censorship must be addressed
by the Congress.

Richard C. Rhodes

378

ST. ANTONY’S COLLEGE.

OXFORD
0X2 6JF
teu boom

11 February, 1984

Bear Congressman Edwards;

Your joint letter (with Chairwoman Schroeder) of January 18th has just reached me
here, where my wife and 1 are spending a few months on a year’s leave of aosemce
from the University of Texas.

Your questions are easily answered; and there’s nothing confidential about
the answers.

The only writing I’ve published which raised tne questions which concern
your committee is: The Diffusion of Power , hew York: Macmillan, 1972. It covers
the period from Sputnik in October 1937 to June 1972. I was in the
White House or State Department tnrougnout the Kennei%y and Jonnson years
and an occasional consultant during tne Elsenhower Administration. The only
documents I had available not open to all scholars were those in my personal
files, held in a secure facility in tne LBJ Library.

The draft of Tne Diffusion of Power raised two kinds of questions. It
contained quotations from memoranda in my files not yet formally cleared;
and it dealt witn sensitive foreign policy issues on which I wished to say
my piec* vi+rcut, however, damaging currnt U. S. negotiations or tne
country’s relations witn ot;.er governments.

I suomitted, tnerefore, for clearance tne passages I wished to quote and
the draft manuscript as a whole to the Special Assistant for Kational
Security Affairs, Mr. Kissinger. I believe he appointed a small inter-
departmental committee to deal with the draft. In due time I was informed that
the quotations could be used and. the manuscript could be publis. hed witnout
prejudicing U. S. national security interests. The time ‘taken for this process
was relatively short, as I remember, perhaps a month but I am not sure.

As for the policy questions you raise, I did not think it appropriate
or necessary inmv writing to go into intelligence information; and I would
supportjtse strictest kind of rules to prevent unautnorized disclosure, from
which this country's security has suffered substantially. On the other
hand, except in special cases (in which I vo-ld include a former
Special Assistant for National Security Affairs like myself) I should
tnink submission of tne classified portions of a manuscript should suffice.

Sincerely yours

Uj U ) lU'qXzW^'

V. V. Rostov

THE UNIVERSITY OF GEORGIA

SCHOOL OF LAW

ATHENS, GEORGIA J06O2

February 13, 1984

The Honorable Patricia Schroeder

House of Representatives

122 Cannon House Office Building'

Washington, D. C. 20515

Dear Patricia Schroeder and Don Edwards:

When I left the office of Secretary of State on January 20, 1969, I did
not bring away with me any files, "papers, " memoranda or other such records. I
brought away my appointment books which are now available to anyone who wishes
to see them in the LBJ and JFK libraries and the retained copies of my income
tax returns. Everything else I left in the Department of State. That Depart-
ment very kindly bound for me certain publications which covered my period of
service, such as the State Department Bulletin, the diplomatic blue book and a
complete set of my public speeches.

When I joined President Kennedy in 1961 I decided and announced that I
would never write memoirs. There were many reasons for this, one of the prin-
cipal ones being that I wanted foreign leaders to know that if they wished to
talk to me in confidence that I would not rush out and write a book about it.

My answers to your numbered questions are given against the background
provided above.

1. I have written a variety of articles on legal and political matters
since leaving Washington. I have not, however, included anything that would
still be classified.

2. I have served in the following positions in the federal government:

(1) War Department General Staff (G-2), 1941-43;

(2) Deputy Chief of Staff, China-Burma-India Theater, June 1943-45;

(3) Operations Division, War Department General Staff, June 1945-

February 1946;

(4) Department of State generally from February 1946 to May 1952 as

Assistant Secretary of State for United Nations Affairs, for

Far Eastern Affairs and as Deputy Under Secretary of State.

(b) Secretary of State, January 1961-January 1969.

During all of this service I had access to highly classified and sensitive
i nformation.

380

February 13, 1984
Page 2

3. I have never submitted any publication for pre-publ ication review
partly because I have never used any unpublished governmental documentary
material .

4. Not applicable

5. Not applicable

6. Assuming reasonable good faith, it should be sufficient to submit only
those portions of writing which might contain classified information — but the
assumption of good faith is the problem.

One relevant point which ought to be clarified by law has to do with the
ownership of government documents. 1 believe very strongly that government
documents prepared by officials relating to the public business of the United
States should belong to the government and should not be hoarded away in
private homes or other caches by individuals during their public service for
possible use after they leave the government.

Sincerely,

Dean Rusk

381

February 16,' 1984

J. ROBERT SCHAETZEL
2 Bay Tree lane

B ITT M EG DA, MARYLAND ZOBIO

Ison aao.asio

The Honorable Patricia Schroeder
United States House of Representatives
Washington, D. C. 20515

Dear Congresswoman Schroeder:

I appreciate the opportunity to comment on National Security Decision
Directive 84. You may use this letter or any information in it as you
wish. The comments that follow pick up the numbering in your letter
of January 31.

1. Since I left the State Department in 1972 I have written extensively.
Within months of my resignation articles of mine appeared in Fortune ,
subsequently another in the Reader's Digest ; since then articles have been
published in several European publications and in Foreign Policy . I

have written a number of op-ed pieces for the New York Times , Christian
Science Monitor , Los Angeles Times and the Washi ngton Post . Under the
auspices of the Council on Foreign Relations I wrote a book, THE UNHINGED
ALLIANCE, published by Harper and Row; it was subsequently republished
in Germany. The book, articles and newspaper pieces were all related
to my previous work in the government.

2. I began my career in the government in 1942 in the Bureau of the
Budget, moved to the State Department in 1945 and was sequentially Special
Assistant to the the Assistant Secretary for Economic Affairs (1945-1954),
in the office of the Secretary of State, responsible for the peaceful
uses of atomic energy (1955-1959), Special Assistant to the Undersecretary
of State (1961-1962), Deputy Assistant Secretary for Atlantic Affairs
(1962-1966), and Ambassador to the European Community (1966-1972). In
each of the latter positions I had access to a wide range of classified
material running from atomic energy Q clearance, assess to CIA material,
top secret materials handled in the office of the Secretary and top secret
NATO documents,

3. As I look back, I do not recall any specific steps I took to insure
that I did not use classified information in my writing or lecturing after
leaving the government. After 30 years in the government where one was
constantly moving from the internal use of classified material to public
lectures or testifying before Congress in open sessions, exchanges with
journalists, an almost automatic reflex mechanism screens out sensitive
material. None of my articles or the book manuscript were submitted to
the" State Department for pre-publication review.

4. Not applicable.

33-307 0—84 13

382

5. While this is not directly applicable to my experience, nonetheless

I would like to comment. From what I know of the current process and the
problems that some of my colleagues have had there is no doubt in my mind that
pre-publication review would be inhibiting, tedious and of the most dubious
value to the government. A key consideration is the bureaucracy that would
be requied to administer any such program. First, the personnel assigned
to the review process would inevitably be the least crmpetent, less expert
with respect to the subject matter being reviewed than the author. The
result would be a mixture of caution and obduracy. Second, if the process
should involve subsequent and higher level review of manuscripts by those
people presumed to be especially competent with regard to the subject
matter then other major problems arise. There is the matter of time;
when will a high level officer turn to a tiresome task peripheral to his
operational responsibilities? One can be sure that a senior reviewing
officer presumed to have the expertise necessary would find it difficult
to discriminate between questions of national security and reservations
relating to policy differences or matters where possible embarrassment to
the current administration might be at issue.

6. I find no saving grace in the suggestion that former officials be asked
only to submit those portions of writings which might contain classified
information. This would place an unreasonable burden on authors. In our
own society endless amounts of so-called classified materials have been
picked up by journalists and gotten into print. It would be almost impossible
to isolate passages that might contain classified material other than in

the improbable situation where the writer quoted directly from classified
documents.

I have previously discussed this entire subject with Senator Mathias. He
confirmed my uninformed judgment. There have been at best no more than
a half-dozen cases where the published work of any former government official
has contained material that can reasonably be construed as affecting our
national security.

One overriding national interest is to have an informed public. Former
government officials have an obligation to draw on their experience and
bring the insights they have acquired before the public. The value of
this process clearly counter-balances any slight risk of classified
material having a direct and evident national npcurity component getting
into the public domain.

My experience corroborates that tired cliche: leaking of classified
material has overwhelmingly come, and will continue to come, from the top
levels of the White House and the major departments. Beyond the obvious
flaws of Directive 84 it lacks any perspective. People are drawn to
government because of the opportunity it provides for public service.

Why should people so motivated, on leaving government, suddenly lose the
sense of responsibility that led them into government in the first place?

Thank you for inviting my views on this unnecessary, cumbersome; probably
unconstitutional and surely harmful proposal. It is more reminiscent of
the thought-control processes of totalitarian political systems than of
the democratic traditions of the West.

383

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reLi?HCNE -7C2, :-E£ sees

January 30, 1984

Don Ecvards, Chairman

Subcommittee on Civil & Constitutional Rights
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515

Dear Congressman Edvards and Congresswoman Schroeder,

This letter responds to your questionnaire of January 18 concerning
National Security Decision Directive 84 which seeks tc reduce the
unauthorized disclosure of classified material. The following
answers are keyed to the questions of the same number.

1. My major writing first appeared as a Ph.D. dissertation for
Harvard University. The dissertation was later published in book
form. Other articles, speeches, reviews, etc. have in large part
drawn on this original body cf research. The initial writing was
partly related to my government employment.

2. I was an officer in the U.S. Army. My writing addresses the
period of time I was associated with policy planning concerning
Vietnam issues, and particularly during the period I was assigned
as Assistant for Southeast Asian Affairs, Policy Planning Staff,

Office of the Assistant Secretary of Defense (International Security
Affairs) . I held this position from January 1969 until July 1969.

I had access to classified and SCI during this period, as well as
before and after.

3.1 submitted my entire Ph.D. dissertation for prepublication review.
Since I was on active duty with the Army when it was submitted, I
provided it to Army Security Review in the Office of the Chief of
Information, Department of the Army, Pentagon.

4. My experience was excellent. The Army review cleared my manuscript
within six weeks. Although some reviewers recommended that it be
passed to ’other agencies for review, the chief reviewer saw no reason
to do so, and cleared my manuscript without delay or celect ion. Since
my retirement from the Army, I have submitted no subsequ^r 4 * writings
for review.

5. No. The best method is by briefings, updates, compartmental-
ization, and supervision. Many people recently charged with disclosing
information had access to more information than they should have.

6. Yes, the current Directive is unworkable. For example, I have
been on panel's discussing issues T worked on where there was no
possibility of providing remarks beforehand

384

The Graduate School and University Center
oi IheCity University of New York

Aioert Schweitzer Chair in the Humanities

G'izJuate Center 33 West 42 Street. New York. N Y 10336

2'c 790-4261

8 February 1984

Honorable Don Edwards and Honorable Patricia Schroeder

Committee on Post Office and Civil Service

Subcommittee on Civil Service

U.S. House of Representatives

122 Cannon House Office Building

Washington, D.C. 20515

Dear Don and Pat:

In response to the questions in your letter of 18 January regarding
National Security Directive 84:

1. I have written two long books (A Thous and Days : John F . Kenned y

i n the White House , and Robert Kenn e dy and His Times) as well as
innumerable articles in magazines and newspapers drawing on or
reflecting my government service.

2. I have served intermittently in the federal government for forty
years. During the Second World War, I served in the Office of War
Information, the Office of Strategic Services and the United States
Army. v In the Truman administration I was a special assistant to
Averell Harriman in Paris during the first days of the Marshall Plan
and later a consultant for the Economic Cooperation Administration.

In the Kennedy administration I served as a special assistant to
the President. In the OSS, the Marshall Plan and the Kennedy White
House I had access to classified information. I don’t remember that
the SCI classification existed in those faraway days, but I was
cleared for quite high intelligence categories.

3. I have never submitted any writing for prepublication review, nor
shall I ever do so. I feel that my experience as an intelligence
officer in the Second World War and as a presidential special
assistant equips me to judge what would or would not harm national
security. In general, I am sure that people deemed responsible
enough to serve in high government posts are quite responsible
enough to make this judgment for themselves — indeed, are better
qualified to make the judgment than timid government bureaucrats,
who are inevitably more concerned with pleasing their superiors
than with informing Congress and the electorate. As a candid
admiral told the Moss Committee some years ago, M I have never known
a man to be court-martialed for ovei*cl ossifying a paper." I might
add that, so far as I know, nothing I have written has been criticized
for disclosing secrets injurious to the national security.

385

A. As noted above, I cppo-se prepubl Scat ion review in j '.nciple .

5. I believe that the expansion of prepublication review is an effective
means of denying Congress and the people information it needs to
make informed and responsible political decisions. "Though secrecy
in diplomacy is occasionally unavoidable," wrote Lord Bryce, who

was British ambassador to Washington from 1907 to 1913, "it has
its perils. ... Publicity may cause some losses, but may avert
some misfortunes."

6. The whole idea of former gcvernment officials submitting their
writings on public policy to frightened government clerks for pre-
publication review is outrageous. The effect of the secrecy system
is much less than it is to enable the federal government to dissemble
its purposes, cover up its mistakes, manipulate its citizens and
maximize its power.

There is nothing in the above remarks that I desire to keep confidential.

For a discussion of the historical evolution of government attitudes toward
secrecy, you and the staff might be interested in glancing at chapter ten
of The Im p erial Presidency , "The Secrecy System."

I would appreciate it if you would send me a copy of your report when your
investigation is finished. And my best regards to you both.

Sincerely yours,

Q'M — - r ^

Arthur Schlesinger, jr.»

386

The

ARMS CONTROL ASSOCIATION

11 Dupont Circle, N.W. ® Washington, D. C. 20036 • (202) 797-6450

January 31, 19

Herbcrt ScoviHc, Jr.

FtttidtiU

The Honorable Patricia Schroeder and
Don Edwards

The House of* Representatives
Committee on Post Office and Civil Service
122 Cannon House Office Building
Washington, D. C. 20513 .

Dear Ms. Schroeder and Mr, Edwards,

This is in response to your letter of January l&th asking
questions relative to my publications since I left government
service. I am responding to the questions in the order they
appeared in your letter.

1. Since I left the government in 1969 I have written ex-
tensively for a wide variety of publications, I have had published
two full books Missile Madness , Houghton Mifflin 1970 and MX:
Prescription for Disaster , MTT Press 19 #1. In addition I Have
written chapters for a wide variety of additional books. I have
also had articles published in many different magazines such as
Foreign Affairs , Foreign Policy , Scientific American , New York
Revi ew of Books , TmlletIn~"oT Atomic Scientists' N e w~RepuFXi c ,

etc. I~ have also ^written many articles for newspapers such as
The New York Times , Los Angeles Times , Washington Post , and The
Chri st j an "S ci end e "Monitor . I have also written articles for
journals and various organizations involved in national security
matters such as the Arms Control Association and the Center for
Defense Information, I have occasionally written for international
publications such as the SIPRI Yearbook. In addition I have
testified before many congressional committees.

None of these writings purport to be works of fiction, and
all are analyses of various national security issues based on my
experience in the government and ray studies since I left it in
19§9» None describe my experiences in the government,

2. The professional positions that I held within the govern-
ment and the periods of time that I held them are listed in the
copy of my biography attached hereto. In all of these positions

I had access to classified information, and while with the Central
Intelligence Agency and the Arms Control and Disarmament Agency I
had access to sensitive conpartmental information (SCI). Since

387

- 2 -

shortly after I left the government in 19 69 I have had no clearances
or access to classified information. This was at my own choice so
as to avoid any possible confusion that I might be including classified
information in my. writings or lectures.

3. As mentioned above I avoided any access. to classified infor-
mation after leaving the government to ensure that my publications
would not inadvertently contain such information. I have never
submitted entire or parts of any publications for prepublication
review and nobody has ever raised any question that ray writings
contain classified material.

4* Not applicable - see above.

5. Since I have had no experience with prepublication' review

I cannot speak from first hand knowledge. I do not believe, however,
that such review is a necessary requirement for all former government
officials, Only in those cases where the writings were skirting the
borderline of classified information, or where the author was uncertain
as to whether the material was unclassified or not should be submitted
for review. It should be the responsibility of the author to ascertain
whether his writings contain classified material, and if he publishes
material then he should be held responsible for such disclosure. The
submission of everything. that every government official who had access
to classified material writes. would totally saturate the system and
ensure that no sound judgments would.be made. It. would only be an
invitation for the reviewer to take the easy way. out of claiming
everything was classified. In the long run it might result in more
release of classified information as the former government officials
would become totally frustrated with the delays that such procedures
would entail.

6. My answer to question 5 applies as well to question 6.

I have no objection to these comments being made public. However,
I am not eager to have my name publicly associated with them. Over
the years I have had no problems with the government over my writings
and public statements and I am not eager to create them now.

Sincerely yours,

Enel.

Bio

388

HERBERT SCOVILLE, JR.

Born - March 16, 1915, New York, N.Y.

B.S.; - Yale, 1937

Graduate work in Physical Chemistry, Cambridge University, England
1937-1939

Ph.D. - Physical Chemistry, University of Rochester, 1942

Professional Positions :

U.S. Arms Control & Disarmament Agency - Assistant

Director, Science and Technology 1963

Central Intelligence Agency - Assistant Director
for Scientific Intelligence; Deputy Director
for Research • 1955

Department of Defense - Technical Director of the

Armed Forces Special Weapons Project 19 4&

Atomic Energy Commission, Senior Scientist, Los

Alamos Contract 1946

National Defense Research Committee, Variety of

research contracts related to chemical warfare 1941

Other Positions :

Arms Control Association, Washington, President 1979

Council for a Livable World, Board Member 19 7#

Council A.A.A.S. 1979

Center for Defense Information, Board of Advisors ‘1975

Union of Concerned Scientists, Board 19 SO

Atomic Energy Commission, Advisory Committee on

Nuclear Materials Safeguards 1970

U.S , Delegations to Japan, Australia, South Africa,
and Portugal to interpret the Non-Proliferation
Treaty, Chairman .1967

U.S. Delegation, NATO Disarmament Experts' Meetings,

Chairman 1966

U.S. Delegation to the Geneva Conference of Experts
to Study the Possibility of Detecting Violations
of a Possible Agreement on the Suspension of
Nuclear Tests 195&

Air Force Science Advisory Board 1955

President's Science Advisory Committee, Consultant 1957

1969

1963

1955

1946

1945

1972

1968

1962

1963

Selected Publications :

Missile Madness - co-author with Robert Osborn, Houghton Mifflin,

1970

Toward a Strategic Arms Limitation Agreement, Carnegie Endowment,

I97 o •

Verification of Nuclear Arms Limitations: An Analysis, Bulletin
of the Atomic Scientists , October 1970.

389

- 2 -

International Safeguards: Technical Capabilities, Chapter in
Non-Proliferation Treaty: Prospects for Control, Willrich &
Boskey, 19 70.

The Limitation of Offensive Weapons, Scientific American, January
1971.

Beyond SALT I, Foreign Affairs , April 1972,

Missile Submarines - and National Security, Scientific American ,

June 1972. •

A New Look at a Comprehensive Nuclear Test Ban, Stanford Journal ,
Spring 1972.

The Future of the Sea-Based Deterrent, MIT Press, 1973 - Chapters

MIRV Control Is Still Possible, Survival , International Institute
for Strategic Studies, Ma r c h - Ap r 1 1 19 74 •

Flexible Madness, Foreign Policy , Spring 1974.

SALT: The Moscow Agreements and Beyond, The Free Press , 1974 -
Chapter: A Leap Forward in Verification.

Is Espionage Necessary for Our Security? Foreign Affairs, April
1976.

The SALT Negotiations, Scientific American , August 1977.

SALT Verification and Iran, Arms Control Today , February 1979.

The Monstrous MX, The New York - Reyiew of Books , March 1930.

Verification of Soviet Strategic" Missile “Tests, Chapter in

Verification and SALT, edit, Wm. Potter, Westview Press, 1930.

MX: Prescription for Disaster , MET Press,. 1931.

witness - before the Senate and House Armed Services and Foreign
Relations Committees on Defense Budgets, Strategic Policies,
and Arms Control,

Other writings on defense and arms control matters in the New York
Times , Los Angeles Times , Washington Post , Christian Science
Monitor - New Republic" , etc.

Medals and Awards :

Hutchinson Medal, University of Rochester, 1931.
Rockefeller Public Service Award, 1931.

64 OO Georgetown Pike
McLean, Va. 22101
(703) 356-3205

390

yt • NINETY-EIGHTH CONGRESS

PATRICIA SCHAOfDEH. COLO . CHAIRWOMAN

WORRIT A US UL AMT CMARUlfAtMAYAN JR C»U(

CAtIC HAU (NO (RAN A n WOK V»

61 AAV KAORTaI Mirh

B.S. ttousc of "RcprcstntatiDcs

COMMITTEE ON POST OFFICE AND CIVIL SERVICE
SUBCOMMITTEE ON CIVIL SERVICE

122 CANNON HOUSE OFFICE BUILDING

Sangfjinflton, 2D,£. 20515

TELEPHONE |20I| 225-40*5

January 25, 1984

Deax^Mr. Seelye^

Pre^irdent Reagan t on March 11, 1983, issued National Security
Decision Directive 84 (copy enclosed) which seeks to reduce the
unauthorized disclosure of classified information. Amonq other
things, the Directive requires that employees with access to
certain types of restricted information sign non-disclosure
agreements containing a requirement that the employee submit for
prepublication review all writings "which contain or purport to
contain" any restricted or classified information or "any
information concerning intelligence activities, source, or
methods." This requirement applies for the rest of the employee’s
1 i f e t ime .

The Subcommittee on Civil and Constitutional Rights of the
Committee on the Judiciary and the Subcommittee on Civil Service
of the Committee on Post Office and Civil Service held joint
hearinqs in April to explore the Directive and the need for it.

Our joint investigation into this matter continues.

As part of this effort, we are writing to request your assistance.

As a former government official who has published articles or
books concerning the issues you confronted while serving your
country, you can provide us with valuable insight into the need
for, value of, and problems with prepuhlicat ion review.

Therefore, we request that you respond to the questions below.

Your answers will be valuable in the preparation of our report on
this issue. .

. I* v * J.-k- (\VA.v«fv t p»>f )

1* Please indicate the type of publication (s ) in which your
'writing has appeared since you first left government service —

1. e,, in books, newspaper articles, or works of fiction — and

.^whether the writing was related to your former government .

'[employment. /^v Vj.U * » Auvu.t, it •.’A J

1 v-.-'ic .'j jr w (

2. What position(s) did you hold in the Federal government? For r

•Awhat periods of time? Did you have access to classified ^

J; information in such position? Did you have access to sensitive p-y 1
^ compartmented information (SCI) in such position? *" ^

> *•
S'** 1

«*3. What steps did you take to ensure that your publication (s )
'contained no classified information? Did you submit your entire
^publication for prepublication review or did you submit parts for
1 review? If you submitted only a portion of your v/ritinq for
prepublication review, on what basis did you decide which portions
to submit?

•"n

391

January 25, 1984
Pape 2

4. If you have submitted any writinps for prepuhlication review,
what was your experience? To whom did you submit your material?
Were you requested to delete material from your work? Were you
permitted to show that the material was not classified? How lonp
did it take to review the material?

5 * 3ased on your experience with the prepublication review
process, do you believe that expanding its use is the most
appropriate and effective means of preventing disclosure of
classified information?

We are, of course, cognizant of the fact that this is a very
hectic time for everyone. However, your earliest assistance in
responding to this request will he most appreciated since the
Committees believe it is important to conclude their inquiry.

Please indicate in your response if you prefer that your comments
be kept confidential; otherwise, they will be made a part of our
public record.

Helen Gonzales of the Judiciary Committee staff {226-7680) and
Andrew Feinstein of the Post Office and Civil Service Committee
staff (225-4025) are available to answer any questions you might
have about this request.

With kind regards,
Sincerely ,

DON EDWARDS
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary

PATRICIA SCHROEDER
Chairwoman

Subcommittee on Civil
Service

Committee on Post Office and
Civil Service

Enclosure

392

Carnegie Endowment for International Peace

Ay. V
>

1 /

February 22, 1984

The Honorable Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
Room 2137 Rayburn HOB
Washington, DC 20515

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service
Room 122 Cannon HOB
Washington, DC 20515

Dear Mr. Edwards:
Dear Ms. Schroeder:

Thank you for your letter of January 25, 1984.

The prepublication-review requirement in National Security Decision
Directive 84 is entirely inappropriate. The purpose behind it is clear.

This is an administration which consistently misrepresents the facts to the
American people. For example, according to the White House spokesman
recently, State Department estimates were that "leftists' 1 were responsible
for 40% of the political murders in El Salvador. State Department sources said
there were no such estimates. Assistant Secretary of State Langhorne Motley
told a congressional committee recently that we had had to give up efforts to
evacuate U.S. citizens from Grenada by sea because the ship that was to have
taken them off was fired upon. The ship's owners, however, pointed out that
the ship could hardly have been fired upon; it had not even reached the area
at the time the invasion Mas launched.

In responding to House Speaker O’Neill's call the first of February for
the removal of our marines from Lebanon, President Reagan said, "he may be
ready to surrender, but I’m not.” But it then turned out that at the same
time he was belittling the Speaker, Mr. Reagan had already made the decision
to do just what the latter was suggesting and on February 7 announced that
the marines would be "redeployed."

A few government employees have been so disturbed by misrepresentations
of this kind that they have quit and spoken out against them. The review
requirement would give the administration the weapon it needs to stop such
whistleblowing. Pentagon employees who wished to write about appalling
waste, kickbacks, and stupid contract policies could be prevented from doing
so. Former State Department officials who wished to criticize inept policies
in, say, Lebanon and Central America, could be muzzled. /

Adequate laws and regulations already exist to protect information which /
is truly sensitive and truly related to national security. The Congress
should not give the administration this new power it is requesting. There /
is, first of all, no need for it. The purpose, moreover, is sinister: to
curtail the freedom of expression and free debate of ideas which are our
national heritage.

Sincerely,

Wayne S . Smith
Senior Associate

393

AMERICAN EXPRESS COMPANY
AMERICAN EXPRESS PLAZA NEW YORK N Y 10004

JOAN EDELMAN SPERO
SENIOR VICE PRESIDENT
INTERNATIONAL CORPORATE AFFAIRS

MarchJ 9,

1984

Dear Congressman Edwards and Congresswoman Schroeder:

I am pleased to respond to your letter of January 31 ,
1984 requesting information about articles and books
I have written covering issues I dealt with while I
was U.S. Ambassador to the United Nations Economic
and Social Council in 1980 and 1981.

While I was in government I had access to classified
information including SCI. I have written several
articles since leaving government and am now in the
process of revising and updating a book I had written
before my government service. While many of the
articles I have written touch on issues which I dealt
with in government - economic issues such as
international trade, U.S. telecommunications and
information policy - only one article had direct
bearing on my government service. This was an
article entitled "The Global Negotiation": Agenda,
Progress and Problems" published in The "Global
Negotiation" and Beyond: Toward North-South
Accommodation in the 1980s edited by Roger D.

Hansen.

The article which I have attached for your
information, was an analysis of the process of
negotiations between developed and developing
countries. At no time did I use any classified
information in preparing the article. It was my
understanding that any classified information could
not be used in such a form, and furthermore it simply
was not appropriate or necessary for the kind of work
I have been doing. Had I had any question about any
of the materials I was using being subject to
classification I would have submitted them for
prepublication review. It is my understanding that
this is a commitment that I have having received the
security clearances that I did. I acknowledge that
this self screening is subjective but believe the
alternative is unfeasible and undesirable.

33-307 0-84 14

394

It it my strong feeling that it is unnecessary and
inappropriate to extend the directive to require
former government officials to submit all
publications/ including speeches and lectures, for
prepublication review. Requiring such former
officials to submit only those portions of writing
which might contain classified information would be
equally effective, in my view. As a former academic
- I was an assistant professor of political science
at Columbia University before my government service -
and as a believer in an open policy debate in the
United States as the most effective way to achieve a
desirable foreign policy, I would argue strongly
against extending unnecessarily the restrictions on
the ability of former government officials to speak
and write. In my view, public debate contributes to
the health of our society and the effectiveness of
our policy. As a business person now, I have
difficulty imagining how government could organize
itself to review all materials written by former
government officials in a way that would avoid
censorship, bureaucratic inefficiency, and
extraodinar ily and unjustifably high cost.

I have no objection to including this letter in the
public record.

Sincerely yours.

Congressman Donald Edwards
Congresswoman Patricia Schroeder
U.S. House of Representatives
Committee on Post Office and Civil
Service

122 Cannon House Office Building
Washington, D.C. 20515

Attachment

395

Joan Spero

deflation as a result of deflationary policies in some of the Organiza-
tion for Economic Cooperation and Development (OECD) coun-
tries; whether we are going to have growing degrees of bilateralism
rather than strengthened multilateralism; whether this is the end of
Bretton Woods and whether we should seek a different institutional
structure for the future; and whether issues like international mone-
tary reform, energy and others that are now blocked in global negotia-
tions are legitimate issues for serious international analysis, negotiation,
and attempted cooperation in the early 1980s.

In other words, at the Cancun summit, we should try to set the
political agenda and forums of discussion rather than try to make
specific substantive decisions. The North-South summit should itself
become a process: it should meet each year to monitor progress in
North-South relations. If the summit accomplishes this, we may be
able to make some progress in the months ahead.

Chairman Mills: Thank you, Mahbub, for laying the foundations of
the discussion so thoroughly.

And now, Joan Spero.

The u Global Negotiation”: Agenda, Progress, and Problems

Joan Spero: My task today is to talk to you in some detail about the
global negotiations themselves — the agenda, the progress, and the
problems.

1 recently ended one year at the bargaining table of global negotia-
tions at the UN, wh£re along with Ambassador Donald McHenry I
represented the United States in the negotiations during the Eleventh
Special Session in August and September of 1980; and the continuing
negotiations in a group called the Friends of the President during the
Thirty-fifth General Assembly.

All of these groups were charged with reaching an agreement on a
format for the Global Negotiation. I would like to describe briefly
for you the nature of our charge from the General Assembly, and I
would also like to try to explain to you, at least in part, why we were
unable to fulfill that charge.

It was the Thirty-fourth General Assembly which passed a resolu-
tion calling for the launching of global negotiations. The resolution
called for simultaneous, coherent, and integrated negotiations in five
fields: trade, raw materials, development, energy, and money and
finance. It charged the Committee of the Whole, known affection-

396

Session I

ately as the “COW” at the UN, with reaching agreement on the
following: first, procedures — that is, how we would organize the
negotiations; second, agenda — what specific items in these five
fields would be addressed; and, finally, the time frame — how long
the negotiations would last.

The discussion in the Committee of the Whole began in January of
1980 and was to be completed by the opening of the Eleventh Special
Session in August of 1980. The two sides — and for reasons of
simplicity, I’ll talk about two sides, although in fact there are more
— brought very different conceptions of global negotiations to the
bargaining table. Let me describe those two conceptions briefly,
admittedly in simplistic terms and in their most extreme form.

The Group of 77 offered a paper on procedures, agenda, and time
frame for global negotiations. The proposal of the Group of 77 on
procedures can best be characterized by the concept of centralization.
As Mahbub ul Haq noted, the group wanted one central body or
conference with the authority to negotiate binding and detailed
agreements in all the issue areas. It wanted to use trade-offs among
the issues in the bargaining process. It wanted universal participa-
tion, and, finally, it wanted to avoid as much as possible the existing
specialized forums, especially the International Monetary Fund and
the General Agreement on Tariffs and Trade (GATT), which it pro-
posed to offer a consultative status.

The agenda proposed by the Group of 77 can best be described as
the New International Economic Order, a long and detailed list of
items in the five fields. Included in the agenda were important
structural reforms, such as a change in the decisionmaking proce-
dures in the International Monetary Fund. Also included in the
agenda were a variety of items of concern to the different groups
within the Group of 77, ranging from a commitment to the transpor-
tation and communications decade in Africa to the guarantee of
financial assets of the capital surplus oil-exporting countries.

Finally, the time frame proposed by the Group of 77 was from
January to September of 1980, or nine months, which came to be the
time frame that everyone accepted while recognizing that it was
unrealistic.

The developed countries offered a totally different conception of
global negotiations. I should note that the developed countries never
presented a comprehensive proposal as did the Group of 77. Rather,
different countries offered various position papers emphasizing differ-
ent aspects of the proposed global negotiations.

The reason for the absence of a common developed-country pro-

397

Jean Spero

posal — this is important to note and a point to which I will return —
is that the developed countries in New York do not negotiate as a.
bloc as does the Group of 77. There is something called Group B in
Geneva and in Rome, which is the caucus of developed countries
(essentially countries of the OECD), but Group B simply does not
exist in New York.

The developed countries, however, did have a general conception,
if not a formal paper, of global negotiations. On the matter of
procedures, in contrast to the Group of 77, they stressed decentral-
ization, not centralization. They wanted to emphasize the role of the
specialized forums, where those forums had legal competence and
expertise. For example, monetary reform would be negotiated in the
IMF, and commodity agreements in United Nations Conference on
Trade and Development. They also felt that it would be unrealistic
and unmanageable to try to link all of the issues, as proposed by the
Group of 77.

As far as the agenda was concerned, in contrast to the Group of 77
proposals for the New International Economic Order, the developed
countries took more of a problem-solving approach. They wanted to
focus on priority items that in their view reflected serious problems
and on which it would be possible to achieve concrete results within
the time frame of nine months or a little bit longer.

For example, the United States offered what we called an “early
action program” (and I must say it sounds a little bit like the
program that Mahbub has just been describing). We suggested the
negotiations begin by talking about energy production in developing
countries, recycling, protectionism, world food security, and world
food production. This general approach was viewed as insufficiently
reformist and the specific agenda list as too short by the Group of
77.

We were able to move a long way from these two initial extremes.

We made considerable progress in resolving our differences, but in
the end, at the Committee of the Whole, the Special Session, and the
General Assembly, we were unable to bridge the remaining gaps. As
a result, there is to this date no agreement on the Global Negotia-
tions. Let me describe how far we came before I suggest the reasons
why I think we didn’t get there.

On the issue of procedures, we developed the concept of a phased
process that would combine both centralization and decentraliza-
tion. The negotiations would begin with a conference, as proposed
by the Group of 77, which would, by consensus, develop guidelines
and objectives relating to the various items on the agenda. These

398

Session I

guidelines and objectives would then be given to the specialized
forums or to ad hoc groups that would be set up to carry out the
detailed negotiations. This latter procedure responded to the North-
ern preference for a decentralized approach.

After these groups carried out their negotiations in a decentralized
fashion, the results of each separate negotiation would be returned
to the conference to be assembled in a final, so-called “package
agreement ” Obviously, this final step represented another conces-
sion to the Group of 77 concept of linking issues and making
trade-offs at the end of the day.

This, then, was our general agreement, but we still had important
problems with the details of that agreement. The major problem, in
my view, concerned the balance between the role of the conference
and the role of the specialized forums. How could we satisfy the
desire of the developed countries to preserve the autonomy and the
utility of the specialized forums while also satisfying the desire of the
Group of 77 to bypass the specialized forums in order to achieve their
desired goals?

Another important procedural barrier related to energy. Energy, it
turns out, is the one issue with no specialized forum. It is the one
issue to which there was no logical venue for decentralized analysis
and negotiation. Furthermore, the oil-producing and oil-exporting
countries feared greatly that global negotiations might, through the
process of decentralization, lead to the creation of an energy institu-
tion that they have very much opposed ever since the issue first arose
in 1974.

We were able to reach some agreement on the agenda by making it
more neutral. This was accomplished by emphasizing the goals of the
New International Economic Order in a preamble while developing
the actual working agenda in more neutral terms. Important differ-
ences remained, however, especially in the areas of energy and money
and finance.

Finally, on the issue of the time frame, as noted earlier, everyone
agreed that the entire process would last nine months; ironically,
everyone also came to agree that this time frame was unrealistic.

The main question I want to address is why we were unable to
bridge these gaps and why there has been a continuing stalemate
regarding the launching of the Global Negotiation. There are many
levels of explanation for the failure of negotiations. They range
from the concept of disparity of power among the participants in the
negotiation to the fact that an election took place in the United States
during the process of the negotiations. I would like to offer a

399

Joan Spero

perspective from the negotiator’s standpoint, a microperspective of
the problems as I saw them in the process of trying to negotiate them
at the United Nations.

My main point is that the process itself is a barrier to agreement.

Let me explain what I mean, and let me say quite frankly that I give
you a slight caricature of the process in the hope that I will provoke
some response from the other participants.

Let me look at this process at three levels: first, the individuals
who participated in the process; second, the groups that organized
the process; and, finally, the bargaining structure of the United
Nations itself.

The participants in the negotiations, the key actors in this process
from the North and the South, are very different. The reason they
are different and bring very contrasting perspectives to a negotiation
is an outgrowth, to a great extent, of the way governments are
organized to make and to execute North-South policy.

In the simplest of terms, the South is represented by diplomats and
representatives of foreign ministries, while the North is represented
by economists who come not only from foreign ministries but also
from treasuries and finance ministries. One very significant result is
totally different views of reality and totally different conceptions of
what the negotiations are all about.

First, the Group of 77. Again, I apologize for making rather
sweeping generalizations. The activists behind the Global Negotia-
tion are diplomats from the foreign ministries. In fact, very often the
activists are diplomats based in New York, because ti.; foreign
ministries in the capitals, for a variety of reasons, are not intimately
involved in the negotiations.

The diplomats from the Group of 77 are not trained economists.

They adopt the economic analysis that argues that the system is
fundamentally distorted from a development viewpoint and is inequit-
able, although they are not always able to argue the case effectively
about the distortions in the market. Furthermore, the representatives of
the Group of 77 distrust the International Monetary Fund, the General
Agreement on Tariffs and Trade, and, dare I say, the World Bank.
Although many of them, because they are not specialists in this area, do
not fully understand the operation of these institutions, they are per-
suaded of the political argument that it is necessary to change in effect a
fundamental system.

And here I want to add a brief footnote. That is, the message
heard from the diplomats in the United Nations is not always and
very often not at all the message that is heard in the capitals by the

400

Session I

representatives of the developed countries. The talk of the New
International Economic Order, the talk of a multilateral approach to
reform, the discussion of fundamental changes in the system — this
is not the message that American officials hear in the capitals of the
developing countries.

Finally, the representatives of the Group of 77 see the problem in
achieving the New International Economic Order as one of inade-
quate political will in developed countries. Those who argue against
the proposals in various dimensions of the New International Eco-
nomic Order are viewed as self-serving. The Southern viewpoint is
that with the proper “political will,” all would be relatively easy.

The developed-country activists, on the other hand, are by and
large economists. They are most often stationed in their national
capitals rather than the UN, and UN diplomats from the developed
countries are kept on very tight leashes. The key actors in the
developed countries therefore generally see North-South issues in
traditional terms of economic efficiency; that is, in terms of preser-
vation of the market and of the existing institutions that presumably
support that market. They reject the economic analysis adopted by
the Group of 77. They view the system itself and its institutions as
having a fundamentally positive value, not only for the developed
countries but also for the developing countries. While they recognize
the existence of imperfections in the international economic system,
they believe quite honestly and quite seriously that all stand to lose
by restructuring along the lines of the New International Economic
Order.

Furthermore, the North-South dialogue is a relatively low-priority
item for these foreign policy economists. They have to pay attention
to a wide range of issues, from the problem of the dollar to Japanese
auto imports. For them, the North-South dialogue seems “unrealis-
tic.” It attracts little of their attention and, more importantly, little of
their creative thinking and creative effort. This low-priority status is
reinforced by what they hear from the capitals of the less developed
countries (LDCs), and by what they hear from LDC representatives
in IMF and the World Bank, where there is little talk about global
negotiations.

In sum, and again in caricature, they have come to view' the UN as
a dangerous place where diplomats have different and, from their
perspective, misguided opinions concerning economics and the sys-
tem which, if acted upon, can do serious damage to the world
economy. Therefore, to the extent that they want to be responsive to
the South, they want to be responsive to the South outside of the UN

401

Joan Spero

context. Thus, their preference for decentralized, issue-specific nego-
tiations within the IMF, the World Bank, and the GATT.

The result in the negotiations, then, is a fundamental distrust on
both sides about the intentions of the other side. What did they really
mean? What are they really trying to put over on us? There is a lack
of communication, and there is a polarization and a rigidity in these
views.

The group structures of the United Nations are also a problem in
the process. The groups are important at the UN in facilitating
negotiations; quite simply, it would be impossible to conduct a
negotiation among 154 countries. But the groups also pose important
problems and impediments in the negotiations.

The most important group is the Group of 77. It is well organized
to express the economic concerns and the programs of the less
developed countries, but it is poorly organized to bargain and to
negotiate. Unity is the key asset of the Group of 77, and that unity is
achieved by including demands of a great diversity of groups. Fur-
thermore, the Group of 77 is a democracy in that each of the various
groups with diverse viewpoints has a veto power in the system. Thus,
it is difficult, if not impossible, for the group to alter its proposals
without losing important support within the group and without
threatening to fragment the unity of the group. But altering pro-
posals and changing positions is the essence of successful negotia-
tion.

The leadership of the Group of 77 is faced with an important
dilemma: Can it make deals at the bargaining table which it can
eventually sell to the group at the end of the day? The answer,
unfortunately, is often no.

Let me mention one other special group, OPEC. It is a crucial
group within the Group of 77, or at least it was during the process of
planning for the Global Negotiations. The discussion of energy is a
key element of global negotiations, but OPEC had great troubles in
contemplating an energy dialogue.

OPEC — and it is perhaps unfair to talk about OPEC as a unit,
but let me do this because of limited time — did not want energy to
be discussed in an isolated forum. Because OPEC feared the isola-
tion and the heat of discussing energy alone, it wanted energy linked
to a variety of other issues.

Furthermore, OPEC did not want to discuss recycling. Recycling
was, as we started to call it, a four-letter word in planning for the
Global Negotiation. We were not allowed to use the term. And
OPEC also did not want to talk about energy supply or energy price.

402

Session I

It was perfectly willing to talk about energy demand. It thus played
an important blocking position within the Group of 77. Indeed, the
question was raised whether OPEC wanted global negotiations at all.

Although the developed countries have similar interests, they do
not negotiate as a group in New York. The result of this situation was
that their positions often differed. They often spent as much time
haggling and negotiating among themselves as they did negotiating
with the Group of 77. They often sent confusing and different signals
to the Group of 77, which led to disorganization and confusion in the
negotiations.

Finally, there is the third-level problem of the structure of the
negotiations themselves. The regular organs of the United Nations
are rather well structured for bargaining and trying to achieve com-
promise. The Security Council has a regularized system of consulta-
tion. It has a method and a structure that leads to or at least
encourages compromise. The same is true in various committees of
the United Nations General Assembly, where there are regularized
consultative processes.

None of that institutional infrastructure existed for the earlier
negotiations, and the fact that the negotiations were relatively un-
structured posed, I believe, terrible problems.

One of the major problems was the question of who negotiates —
that is, who comes to the bargaining table It is impossible to negoti-
ate with 154 countries, but negotiating with any fewer is often viewed
by those unrepresented as illegitimate.

A related question became whether the chairman of the Group of
77 should come alone to the bargaining table. That is acceptable, but
if he does not bring some of the members of the group, it is highly
unlikely that at the end of the day he will be able to sell his achieve-
ments to the rest of the members of the group. If he brings a few
^ members of the group, who should come? If you are not invited to
the bargaining table, will you pose problems? Will you cause prob-
lems for the chairman if you are left out?

The European Economic Community had similar problems. The
EEC negotiates as a unit, or did so on the earlier global negotiations.
But, of course, all of the ten want to be present at the bargaining
table. That’s understandable because they are the key economic
powers, and they want to be in the room. But if they all come, then
all of the Group of 77 have a right to come and, once again, you’re in
a large room.

The United States, I should add, has no problem. We are always
invited, for obvious reasons.

403

Walt Rostow

All of this puts a major burden on the chairman of the negotia-
tions. The chairman becomes responsible for, in effect, organizing,
managing, and orchestrating the negotiations. He is the arbiter. He is
the prodder. He determines who participates. He often assumes the
risk of producing compromise papers.

If you have a good chairman, you may have a good negotiation.

But a good chairman is a very weak reed on which to build a
negotiating structure, for if there is no good chairman, the negotia-
tions can rapidly and easily flounder.

Therefore, I personally conclude that the process is an important
obstacle to the negotiations. And even if we reach agreement at
Cancun or at Ottawa or elsewhere, the problem of the process at the
UN will remain and will be, in my view, an important obstacle to the
Global Negotiation itself.

Chairman Mills: And now, Walt Rostow.

Beyond the Official Agenda: Some Crucial Issues

Walt Rostow: As I told some of my colleagues last night, I am in a
rather awkward position because my view of the New International
Economic Order negotiations that have taken place since 1974 is that
they have been based on the wrong intellectual conception, the
wrong agenda, the wrong negotiating forum, and the wrong cast of
negotiators. I think that in different ways both of the speakers this
morning have illuminated why that perspective is a defensible view
of the dialogue since 1974.

I perhaps should start by explaining my broad perspective, which
leads me to conclusions that are quite different from those of my
hard-working and responsible colleagues who have been engaged in
this process.

While they were working through this difficult and important
process, 1 was fulfilling a youthful commitment to write a history of
the world economy covering the past two centuries. As I worked
forward to the present and looked to the future, it became clear to
me that we had entered, at the end of 1972, a new phase in the
history of the world economy. This phase, parallel to four previous
phases, will be marked by relatively expensive raw materials.

The list of resources differs with each of these phases, but in this
case it’s clear enough what the key relative shortages are. They are
energy and food. And if we achieve high rates of growth, other costs

404

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Relations
Consultants, Inc,

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1)50 I7tm STRCET NW Washington DC 20036
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William J. vanden heuvel
James g lowenstein
Michael E. Sterner

February 14, 1984

Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service
and

Honorable Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
U.S. House of Representatives
Washington, D. C. 20515

Dear Representative Schroeder
and Representative Edwards:

This is a reply to your letter of January 25, 1984. The
numbered paragraphs below are keyed to the numbered paragraphs
in your letter.

1. Since my retirement from government service in 1981,

X have written newspaper articles (New York Times and
Washington Post) , articles in various professional journals
and a chapter in a book. My output has been entirely non-
fiction. Most of this writing was related to my former
government employment in the sense that it dealt with foreign
policy issues, and in particular U.S. Middle East policy.

2. My two most senior positions in the federal government
were: ambassador to the United Arab Emirates 1974-1976; Deputy
Assistant Secretary of State 1977-1981. X had access to
classified information in both positions. X also had access to
some sensitive compartmented information in both positions.

3. My writing has in all cases dealt with general
policy questions and has not included classified information.
For this reason, X have not submitted my publications for
pre-publication review.

4. and 5. Not applicable.

405

6. In the end the government has to depend on the
judgment and integrity of the former official to determine
whether something he has written might contain material
that ought to be cleared. However , I would think that if
an article deals with classified information at all, the
whole manuscript ought to be submitted for clearance,

I have no objection to making my comments above part
of the public record.

Sincerely yours,

U. S. Ambassador, Retired

Michael Sterner

406

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GERARD SMITH
HENRY OWEN
DALE E. HATHAWAY
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LESLIE J. GOLDMAN
ROBERT HERZ5TEIN
PETER KAMINER
PHILIP H. TREZISE

FRANCOIS OCLABOULAYE
PARIS
N. USHIBA
8. YOSHINO

tokyo Mr. Don Edwards
Chairman

House Subcommittee on Civil
and Constitutional Rights
and

Ms Patricia Schroeder
Chairwoman

House Subcommittee on Civil
Service

Washington, D.C. 20215

Dear Don Edwards and Patricia Schroeder:

In reply to your letter of January the 18th, I
have written a number of newspaper articles since leaving
government in 1980. These are all based on current news
reporting and I did not seek any clearance from the government.

Before publishing my book "Double Talk" which covered
the first SA:T negotiation I submitted the manuscript to the
Secretary of State who authorized its publication. Proceeds
were contributed to the ACA.

I think most of the leakage of classifed information now
comes from high level administration officials while they are
in office. In general, I think that pre-publication review of
the writings of former government officials would be a very
time consuming and expensive process, and I question whether
it would improve the security of the Republic very much.

SUITE 400
1616 H STREET, N. w.
WASHINGTON, D, C. 20006

(202) 842.3711
TELEX 248924 CIG

407

Carnegie Endowment for International Peace

February 22, 1984

The Honorable Don Edwards
Chairman

Subcommittee on Civil and
Constitutional Rights
Committee on the Judiciary
Room 2137 Rayburn HOB
Washington, DC 20515

Dear Mr. Edvards:

Dear Ms. Schroeder:

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and
Civil Service
Room 122 Cannon HOB
Washington, DC 20515

Thank you for your letter of January 25, 1984.

The prepublication-review requirement in National Security Decision
Directive 84 is entirely inappropriate. The purpose behind it is clear.

This is an administration which consistently misrepresents the facts to the
American people. For example, according to the VThite House spokesman
recently, State Department estimates were that "leftists " were responsible
for 40% of the political murders in El Salvador. State Department sources said
there were no such estimates. Assistant Secretary of State Langhorne Motley
told a congressional committee recently that we had had to give up efforts to
evacuate U.S. citizens from Grenada by sea because the ship that was to have
taken them off was fired upon. The ship’s owners, however, pointed out that
the ship could hardly have been fired upon; it had not even reached the area
at the time the invasion was launched.

In responding to House speaker O'Neill's call the first of February for
the removal of our marines from Lebanon, President Reagan said, "he may be
ready to surrender, but I'm not." But it then turned out that at the same
time he was belittling the Speaker, Mr. Reagan had already made the decision
to do just what the latter was suggesting and on February 7 announced that
the marines would be "redeployed."

Adequate laws and regulations already exist to protect information which
is truly sensitive and truly related to national security. The Congress
should not give the administration this new power it is requesting. There
is, first of all, no need for it. The purpose, moreover, is sinister: to
curtail the freedom of expression and free debate of ideas which are our
national heritage.

Sincerely ,

1 i;«u, » t. ‘o .*

Wayne S. Smith
Senior Associate

408

GENERAL MAXWELL D. TAYLOR (RET.)
2500 MASSACHUSETTS AVENUE NW
WASHINGTON. D. C. 20006

March 5, 1984

Chairwoman Patricia Schroeder,

Subcommittee, Civil Service,

Committee on the Post Office and Civil Service,

122 Cannon House Office Building,

Washington, D.C. 20515

Dear Chairwoman Schroeder:

I regret that I can respond only partially to the questions posed
in your joint letter of February 8 with Chairman Don Edwards. There are
several reasons for my limited usefulness. Siitse giving up my place on
the President’s Foreign Intelligence Advisory Board in 1970, I have been
completely out of touch with governmental efforts to give greater protec-
tion to properly classified intelligence, a purpose which 1 have long
supported.

As a result, I am unacquainted with the functions of such agencies
as the ’’Information Security Oversight Office” and "The Office of Personnel
Management.” Likewise I have no knowledge of an official explanation of
what is meant by "Sensitive Compartmented Information" (SCI) and "Informa-
tion Whose Disclosure Would Harm the National Security Interests of the
United States." Thus handicapped, I can undertake to answer only parts
of your sets of questions, not necessarily in the sequence in which they
are made.

As to the principal government positions I have held with relevance to
the questions, they are the following: Army Chief of Staff and member of
the JCS (1955-59); Chairman, JCS (1962-64); Ambassador to Viet Nam (1964-65);
a member, later Chairman of the President's Foreign Intelligence Advisory
Board (1965-70). Insofar as I know, in one or more of these positions, I
had access to all forms of Intelligence bearing on national security. It is
possible I did not see some intelligence relating to particularly esoteric
matters .

As to my literary activities outside of government, I have written
four books, contributed an occasional newspaper article, and delivered many
speeches and lectures, a majority of the latter being on the subjects of
military policy and the Viet Nam war. These activities have extended from
1959 when I produced my first book until the present period. In this span
of time, I have never submitted any book, speech or article for pre-publication
review.

I felt no obligation to do so, given my long experience in national
security intelligence and my priof knowledge of what was and what was not
properly classified. I verified personally that there was no detectable

409

classified material in anything that X publicly wrote and said. No official
or agency has ever raised the issue with me.

As to your questions 5 and 6, having had no experience with the pre-
publication process, I have no qualified opinion as to the desirability of
expanding its use. On the other hand, I think I would strongly oppose
requiring all former government officials with access to SCI intelligence
to submit all publications for pre-publication review. However, you recall
that I mentioned earlier that I do not know what SCI intelligence consists
of. Hence in my lack of knowledge I will not take sides.

Hoping to have contributed something to your investigation,

Sincerely yours,

P h -u 1 -e € lP? ^ -

Maxwell D. Taylor /
General, U. S. Array (Ret.)

Chairman Don Edwards

MDT/cb

410

Yale University

Coules EounJammfvi Rtscanh Campus adJrtu

in Etonemiti jo Hillhottit Avenue

Department of Economics

P.O. Bax 2 izt, Yale Station

Neu< Haven, Conticnitut 06520-2 12$

February 3, 1984

The Honorable Don Edwards
Chairman, Subcommittee on Civil
& Constitutional Rights
Committee on the Judiciary
U. S. House of Representative
Washington, DC 20515

The Honorable Patricia Schroeder
Chairwoman, Subcommittee on Civil Service
Committee on Post Office & Civil Service
U. S, House of Representatives
122 Cannon House Office Bldg.

Washington, DC 20515

Dear Chairman Edwards and Chairwoman Schroeder, W.C.

I am replying to your inquiry of January IS.

I served as a Member of the President’s Council of Economic
Advisers (CFA) in 1961-62, and as a consultant to the Council
for several subsequent years. After my service as a Council
Member I wrote articles or books of several types that drew
on my experience in the government: a) reflecting on the
role of the CEA and more generally the responsibilities
and effectiveness of professional advisers in the federal
government, b) relating to particular issues that arose
during those years and the manner in which they were re-
solved, c) concerning the general subjects that concerned
me as a CEA Member, subjects which were in any case central
to my professional and scholarly interests. These articles
were in academic or professional journals or in books for
similar audiences. Some pieces of type c) , concerned with
issues of policy after 1962, were written for lay audiences
and appeared in popular media* newspapers or other periodicals.

Together with other economic advisers to President Kennedy,
I taped reminiscences of our experiences at the Council for
the Kennedy Library, and X deposited in the library relevant
personal papers. However, I had left all files of official
business in the offices of the Council when 1 departed.

Access to the materials in the Kennedy Library is controlled
by the library, subject to my consent. 1 have from time to
time given my consent to several historians and political
scientists who wished to consult the materials for
scholarly purposes, on the condition that they would clear
with me anything they wished to quote or paraphrase.

My duties at CEA did not involve me in matters of
national security or in access to or preparation of documents
classified higher than administratively confidential or re-
stricted i for example* memoranda to the President or from

411

2 -

the White House on. economic issues. X simply do not re-
member, if I ever knew, the limits of my clearance for
access to classified material. The mature of my subsequent
publications, or even of the Kennedy Library tape, certainly did
not raise any problematic issues of disclosure. They con-
tained nc security-classified information, and I submitted
none of them for prepublication review by anyone. Any
policy decisions X could discuss were long since public
history, and all X could add were my observations of the
processes and internal debates that led up to them.

X fear, therefore, that my experience is not very relevant
to the questions you are addressing. I do believe that to re-
quire prepublication review of any or every public communi-
cation by a former government official with access to SCI information
is excessive and unnecessary, and will discourage valuable con-
tributions to public debate by knowledgeable authors.

JT:lh

Sincerely,
^James Tobin

412

THE CAMPAIGN FOR TUFTS

Tufts University
Packard Hall

Mod ford. Massachusetts 02155
617 666-4515

Malcolm Toon. A'37, F'38. H'77
National Chairman

February 16, 1984

The Honorable Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and Civil Service
United States House of Representatives
122 Cannon House Office Building
Washington, D.C. 20515

Dear Madam Chairwoman:

I submit below answers to questions posed by your letter of
January 25 with regard to National Security Decision Directive 84:

1 . All my writing since retirement has appeared in newspaper
articles or magazine reprints of speeches I have delivered.

2. As a career Foreign Service officer, from 1946 to 1980, I
served in a number of diplomatic missions, mostly in Eastern Europe,
and the Department of State. I served as Ambassador to Czechoslo-
vakia in 1969-71, to Yugoslavia in 1971-75, to Israel in 1975-76,
and to the Soviet Union in 1976-79. In these capacities, I had
access to classified information, including SCI.

3. I have not submitted texts of my articles for review since
in no case did I use classified information in their preparation.

4. Not applicable

5. Not applicable

6. My view is that requiring former government officials to
submit only those portions of writings that might contain classified
information would meet all reasonable standards for safeguarding
sensitive material.

Very truly yours.

Ambassador Malcolm Toon

MT:dmk

Liberal Arts
Jackson College
College of Engineering
Graduate School

Special Studies

The Fletcher School of Law

and Diplomacy

The School of Nutrition

The5chool of Dental Medicine

The School of Medicine

Tlic School of Veterinary Medicine

413

February 29, 1984

Honorable Don Edwards

Honorable Patricia Schroeder

U.S. House of Representatives

Committee on Post Office and Civil Service

Subcommittee on Civil Service

122 Cannon House Office Building

Washington, D,C, 20515

Dear Chairman and Chairwoman:

This is in reply to your letter of February 8,
1984 asking certain questions relevant to your Sub-
committees' consideration of National Security De-
cision Directive 84. My answers correspond to the
numbering of the questions in your letter.

(1) Between March, 1969, when I left the De-
partment of Defense where I served as Assistant
Secretary of Defense for International Security Af-
fairs, and my return to government service in
March, 1977, X wrote numerousarticles in various
periodicals as well as a number of op ed. pieces on
national security issues. Similarly, since resign-
ing as Director of the U.S. Arms Control and Disarma-
ment Agency and Chief Negotiator at the Strategic
Arms Limitations Talks, in November of 1978, I have
written extensively in various publications about
strategic arms policy, arms control and general
security questions.

(2) From September of 1966 to August of 1967,

I was General Counsel of the Department of Defense.

From August 1967 to March 1969, I was Assistant
Secretary of Defense for International Security Affairs.

From March 1977 to November 1978, I was Director of
the U.S. Arms Control and Disarmament Agency and Chief
of the U.S. Delegation to the Strategic Arms Limita-
tion Talks.

414

Honorable Don Edwards
Honorable Patricia Schroeder
February 29, 1984
Page Two

In each of those positions, I had access to
classified information and to sensitive compartmented
information (SCI)-

(3) I utilized my own judgment in determining
that my writings contained no classified information.
I did not submit any part of any proposed publication

for prepublication review.

(3).

(4)

Not applicable ,

, in view of my answer to

(5)

Not applicable

based

on my answer

to (3).

(6)

In my opinion.

there

should be no

require-

ment that former government officials with access
to SCI information submit all or any part of their
publications, including speeches and lectures, for pre-
publication review. There has been no such require-
ment in the past and there is no indication that the
national security has been impaired by the absence of
such a requirement. Leaks of sensitive information
typically occur at the time when policy decisions are
being made and in an effort to influence the decision-
making process. Instances of damaging disclosures
by individuals months and years after they have left
high government positions have been virtually non-
existent. Problems such as renegade CIA agents can
be handled without stifling the flow of valuable in-
sights to the American public and without discouraging
acceptance of responsible government positions.

I have no objection to having my comments made
part of your public record.

Very truly yours.

Paul C. Warnke

415

CENTER FOR THE STUDY
OF AMERICAN BUSINESS

MURRAY L WEIDENBAUM January 30, 1984

Director ond

Molllnckrodt Distinguished
University Professor

Honorable Patricia Schroeder and

Honorable Don Edwards

U.S. House of Representatives

Committee on Post Office and Civil Service

Subcommittee on Civil Service

122 Cannon House Office Building

Washington, DC 20515

Dear Representatives Schroeder and Edwards:

This is in response to your letter of January 18.

1. Since I left government service at the end of August 1982, I have
been writing articles for economics journals and general circulation magazines
and newspapers. This writing generally relates to current economic trends and
future economic matters, rather than my government employment.

2. I was Chairman of the Council of Economic Advisers from January 1981
to August 1982. Previously, I had served as an Assistant Secretary of the
Treasury in 1969-71. I had access to classified information in both
positions, although I saw and used very little of it. I do not even recall
the classification of "sensitive compartmental information."

3. Because I was convinced that my publications contained no classified
information whatever — and that ?>?y were based essentially on open
sources — I have never submitted any of them for review.

4. Not applicable.

5. Not applicable.

6. Under the circumstances, I have no comments to offer.

I trust that you appreciate that the work of an economist analyzing
general economic trends and policies does not typically involve use of
classified information. I hope that this response is useful to you.

MLW/mw

WASHINGTON UNIVERSITY
CAMPUS BOX 1208
ST. LOUIS, MISSOURI 63130
314 889 5662

Sincerely,

WASHINGTON
UNIVERSITY
IN ST LOUIS

33 - 30 ? 1335

(in) 471-4962

THE UNIVERSITY OF TEXAS AT AUSTIN

LYNDON B. JOHNSON SCHOOL OF PUBLIC AFFAIRS

AUSTIN, TEXAS 78712-7450 "Of* Ko-'' r ■<- \ ‘T *

February 13, 1984

Don Edwards
Chairman

Subcommittee on Civil and Constitutional Rights
Committee on the Judiciary
122 Cannon House Office Building
Washington, D.C. 20515

Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Chairman Edwards and Chairwoman Schroeder:

You asked various questions in your letter of January 31 regarding National
Security Decision Directive 84, which seeks to reduce the unauthorized
disclosure of classified information.

Before answering your specific questions, I wish to make a preliminary
comment. Host of my writings deal with technical economic issues, and
little of the information in them is of a security nature. I have never
knowingly included sensitive security Information in my writings. There have
been at least two occasions when I sought security clearance under the Freedom
of Information Act for particular documents of which I was aware, and in some
cases which I prepared, when I failed to receive the clearance. The reasons
had nothing to do with security, but in my judgment refusal was based on the
desire not to embarrass former government officials. This may not be the
stated policy, but it seems to be the practice.

The following answers are keyed to your questions:

1. I have written books, newspaper articles, scholarly articles, parts of
proceedings of conferences, and other materials dealing with a variety of
subjects. Many of these articles cover issues related to those with which I
dealt as a government official.

2. I was a foreign service officer for roughly 25 years. Among my more senior
positions were director of the AID Mission In Chile (1966-1969), deputy
assistant Secretary of State for international finance and development (1969-
1974), and assistant administrator of the Agency for International Development
(1974-1975). I do not know what "sensitive compartmented information" (SCI) is,
but I did have access to Information of all security classifications. At various
times I had special security clearances for particularly sensitive information.

417

3. When I was a government official I meticulously submitted my publications
for prepublication review. Since my departure from the government in 1976,

1 have never submitted anything for prepublication review.

4. Not applicable since my departure from the government.

5. Similarly not applicable.

6. Yes, X believe that requiring officials to submit only those parts of
publications or writings which contain classified information would be just as
effective as submitting complete publications. Indeed, I think it would be more
effective, since the personnel needed for clearance purposes would be much fewer.

I must confess that I am suspicious of any prepublication review process since 1
suspect that one man's security apprehension is another man's public information.
Most of what would be excised would be trivial, in my view, compared with the
damage done to our society by censorship by whatever government was then in
power .

There is no need to keep any of these comments confidential.

Sincerely,

Sidney WcintiJaub
Dean Rusk Professor

SW /lb

418

UNIVERSITY OF CALIFORNIA, SAN DIEGO •

BERKELEY » DA VIA « tHVlNE ♦ LOS ANCKLE3 » fUVEHSISE * SAN DIEGO ‘ SAN FHANC1SCO

PROGRAM IN SCIENCE, TECHNOLOGY
AND PUBLIC AFFAIRS

0-060

LA JOLLA, CALIFORNIA 92093

HERBERT F. YORK, Director
Physics

HANNES ALFVEN

Electrical Engineering &
Computer Sciences

G. anagnostqpoulos

Philosophy

JAMES K ARNOLD
Chemistry

JAMES N. BRUNE
Geophysics

March 13, 1984

u~,V » '

Represencative Don Edwards

Representative Patricia Schroedar

U*S. House of Representatives

Committee on Post Office and Civil Service

Subcommittee on Civil Service

122 Cannon House Office Building

Washington, D.C. 20515

A. DANIEL BURHANS
Science , Technology &

Pwbffc Affairs

G. ALLEN GREB
History

CLIFFORD GROBSTEIN

Biological Science & Public Policy

SANFORD A. LAKOFF
Political Science

JOHN M. MENDELOFF
Political Science

STANFORD S. PENNER
Engineering Physics

Dear Representatives Edwards and Schroeder:

The following is my response to your letter
of 8 February 1984 j it follows the numbering
system used therein.

1) I have written two books, edited a third, ■
plus numerous journal articles. Most of che
content was related to my former government
employment.

2) I was: Director of Defense Research 4
Engineering 1958-1961.

ROCER REVEL LE
Science & Public -Pulley

HAROLD J. SIMON
Gam m unify Medicine

Chief Scientist of ARPA 1958.

Ambassador to Comprehensive Test Ban
Negotiations 1979-1981.

Member, Pres. Science Adv. Committee 1957-58
and 1964-68.

Member , General Advisory Committee on Arms Control
and Disarmament, 1962-69.

In all these positions X had access to SCI.

3) On the very rare occasions when X believed
there might be a possibility that a paper I
had written contained classified information,

I checked with the relevant authorities. I
based my decisions to do so on my own long and
direct knowledge of what is and is not classified.

419

Representatives Edwards and Schroeder -2- * 3/13/84

4) My experience has been satisfactory. When
the classification authorities and I differed,

I was usually able to persuade them that the
material was, in truth, very well known and
therefore should not be categorized as classified,
and they approved publication. In those cases
where they insisted the information was
classified, I followed their wishes in the
matter.

5) Probably.

6) Yes; indeed, more so.

Sincerely,

HFY/sg

420

E. R, ZUMWALT, JR.

_ „ t ADMIRAL. V. S, NAVY (RET.)

7 March 1984

Congressman Don Edwards
Chairman

Subcommittee on Civil and Constitutional Rights
Committee on the Judiciary

Congresswoman Patricia Schroeder
Chairwoman

Subcommittee on Civil Service
Committee on Post Office and Civil Service
122 Cannon House Office Building
Washington, D.C. 20515

Dear Congressman Edwards and Congresswoman Schroeder:

I have your letter of February 9 and my replies to the questions
contained therein are as follows:

1) I have authored one book since retirement called “On Watch"
published by Quadrangle Press in 1976. This book was based on
my former government employment. I have authored countless
newspaper articles, the majority distributed in the format of
"Zumwal t/Bagley Reports'* by the Los Angeles Times Syndicate.

These articles occasionally have referred to government service
but largely are analyses based on experience accumulated in
government service. I have authored perhaps a score of articles
for magazines and periodicals which are commentaries based on
government experience.

2) I attach a detailed resume to indicate what positions I held
in the Federal Government and the periods of time. I had access
to classified information in all positions. I had access to sen-
sitive compartmented information in several of the positions.

421

Congressman Don Edwards
Congresswoman Patricia Schroeder
7 March 1984
Page Two

3) To ensure that my book contained no classified information,
I used my own judgment and had it reviewed informally by re-
tired naval officers and active duty naval officers. I did
not submit the entire publication for official review but did
have it reviewed unofficially.

4) Other than the above, I have not submitted any writing
for prepublication review.

5) The informal method that I used worked very efficiently.

I have no experience with formal prepublication review.

6) I do believe that former government officials should be
required to submit only those portions of writings which might
contain classified information. I believe that this would be
equally effective as the procedure contemplated in National
Security Decision Directive 84.

All best wishes.

Sincerely

E. R. Zwmwalt, dr.

1500 Wilson Boulevard
Arlington, Virginia 22209
703/841-8960

Attachment

422

\ ADMIRAL ELMO RUSSELL ZUMWALT, JR., USN (RET)
TRANSCRIPT OF NAVAL SERVILE

29 Nov 1920
7 Jun 1939
19 Jun 1942
1 May 1943
1 Oul 1944
1 Apr 1950
1 Feb 1955
1 Jul 1961
1 Jul 1965
1 Oct 1968
1 Jul 1970

Born in San Francisco, California
Midshipman, U.S. Naval Academy
Ensign

Lieutenant (junior grade)
Lieutenant

Lieutenant Commander '

Commander
Captain
Rear Admiral
Vice Admiral
Admiral

SHIPS AND STATIONS

USS PHELPS (DD-360) — — —

USS ROBINSON (DD-562)

USS SAUFLEY (DD-465)

USS ZELLARS (DD-777)

NROTC Unit, Uni verlsty of North Carolina at Chapel
Hill, North Carolina (Assistant Professor of Naval
Science)

Jun 1942
Jan 1944
Dec 1945
Mar 1946
Jan 1948

Aug 1943
Oct 1945
Mar 1946
Jan 1948
Jun 1950

USS TILLS (DE-748) (Commanding Officer)

USS WISCONSIN (BB-64) (Navigator)

Naval War College, New Port, RI (Student)

Bureau of Naval Personnel, Washington, D.C.

USS ARNOLD J. ISBELL (DD-869) (Commanding Officer)
Bureau of Naval Personnel, Washington, D.C.
(Lieutenant Detailer)

office of the Assistant Secretary of the Navy for
Personnel and Reserve Forces
(Special Assistant for Naval Personnel)

(Special Assistant and Naval Aide)

USS DEWEY (DLG-14 ) (Commanding Officer)

National War College, Washington, D.C. (Student)
Office of the Assistant Secretary of Defense
for ISA (Desk Officer)

Office of the Secretary of the Navy
(Executive Assistant and Senior Aide)

Commander, Cruiser-Destroyer Flotilla SEVEN
Office of the Chief of Naval Operations
(Director, Systems Analysis Division)

Commander, U.S. Naval Forces, Vietnam and
Chief, Naval Advisory Group, Vietnam
Chief of Naval Operations

Jun 1950
Mar 1951
Jun 1952
Jun 1953
Jun 1955
Jul 1957

Dec 1957
Nov 1958
Dei 1959
Aug 1961
Jun 1962

Dec 1963

Jul 1965
Aug 1966

Sep 1968

Jul 1970

Mar 1951
Jun 1952
Jun 1953
Jul 1955
Jul 1957
Dec 1957

Nov 1958
Aug 1959
Jun 1961
Jun 1962
Dec 1963

Jun 1965

Jul 1966
Aug 1968’

May 1970

Jul 1974

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